FR 2010 06 02

6–2–10 Wednesday
Vol. 75 No. 105 June 2, 2010
Pages 30687–31272
emcdonald on DSK2BSOYB1PROD with NOTICES6
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II Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010
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III
Contents Federal Register

Vol. 75, No. 105
Wednesday, June 2, 2010
Agency for International Development Community Development Financial Institutions Fund

NOTICES NOTICES
Agency Information Collection Activities; Proposals, Funds Availability:
Submissions, and Approvals, 30772–30773 Invitation to Apply for the FY 2010 Funding Round of
the Financial Education and Counseling Pilot
Agriculture Department Program, 30908–30914
See Federal Crop Insurance Corporation
See Forest Service Consumer Product Safety Commission
See Risk Management Agency NOTICES
Agency Information Collection Activities; Proposals,
Centers for Disease Control and Prevention Submissions, and Approvals:
NOTICES Safety Standard for Infant Bath Seats, 30783–30784
Teleconference: Provisional Acceptance of a Settlement Agreement and
Disease, Disability, and Injury Prevention and Control Order:
Special Emphasis Panel, 30844 Schylling Associates, Inc., 30784–30787
Centers for Medicare & Medicaid Services Defense Department

PROPOSED RULES See Navy Department
Medicare Program: NOTICES
Supplemental Proposed Changes to the Hospital Inpatient Arms Sales Notifications, 30787–30791
Prospective Payment Systems, 30918–31117 Privacy Act; Systems of Records, 30791–30793
Supplemental Proposed Changes to the Hospital Inpatient Proposed Changes to Electronic Filing Guidelines:
Prospective Payment Systems for Acute Care U.S. Court of Appeals for Armed Forces, 30793–30794
Hospitals; Correction, 30756
NOTICES Drug Enforcement Administration
Medicare Program: NOTICES
Hospital Inpatient Prospective Payment Systems for Revocation of Registration:
Acute Care Hospitals and Fiscal Year 2010 Rates, Shepard Ginandes, M.D., 30860–30861
etc., 31118–31222
Privacy Act; Systems of Records, 30839–30841 Education Department
NOTICES
Coast Guard Applications for New Awards for Fiscal Year 2010:
RULES Technology and Media Services for Individuals with
Safety Zones: Disabilities––Television Access, 30795–30799
Red Bull Air Race, Detroit River, Detroit, MI, 30708– Waivers of Section 1605 of 2009 American Recovery and
30710 Reinvestment Act (ARRA):
Wilson Bay, Jacksonville, NC, 30706–30708 Poplar School District, Poplar, MT, 30799–30800
PROPOSED RULES
Drawbridge Operation Regulations: Employment Standards Administration
Arkansas Waterway, Little Rock, AR, 30750–30753 See Wage and Hour Division
Curtis Creek, Baltimore, MD, 30747–30750
Regulated Navigation Area: Energy Department
Thea Foss and Wheeler–Osgood Waterways EPA See Federal Energy Regulatory Commission
Superfund Cleanup Site, Commencement Bay, PROPOSED RULES
Tacoma, WA, 30753–30755 Energy Conservation Program for Consumer Products:
NOTICES Test Procedure for Residential Central Air Conditioners
Meetings: and Heat Pumps, 31224–31271
National Offshore Safety Advisory Committee; NOTICES
Teleconference, 30845 Environmental Impact Statements; Availability, etc.:
Texas Clean Energy Project, Ector County, TX, 30800–
Commerce Department 30804
See Foreign-Trade Zones Board Meetings:
See International Trade Administration Biomass Research and Development Technical Advisory
See National Institute of Standards and Technology Committee, 30804–30805

See National Oceanic and Atmospheric Administration
See Patent and Trademark Office Environmental Protection Agency
RULES
Commodity Futures Trading Commission Approval and Promulgation of Air Quality Implementation
NOTICES Plans:
Reestablishment of the Technology Advisory Committee, Wisconsin; Particulate Matter Standards; Withdrawal of
30783 Direct Final Rule, 30710–30711
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IV Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Contents
NOTICES Federal Crop Insurance Corporation

Agency Information Collection Activities; Proposals, NOTICES
Submissions, and Approvals: Agency Information Collection Activities; Proposals,
Request for Comments on Thirty-One Proposed Submissions, and Approvals:, 30770–30771
Information Collection Requests (ICRs), 30812–30824
Cancellation Order for Pesticide Registrations:
Methidathion, 30824–30825 Federal Energy Regulatory Commission
Draft Toxicological Review of Formaldehyde In Support of NOTICES
Summary Information on the Integrated Risk Applications:
Information System, 30825–30827 Colorado Interstate Gas Co., 30806
Meetings: Gibson Dam Hydroelectric Company, LLC, 30805–30806
Science Advisory Board Staff Office; SAB Public Utility District No. 2 of Grant County, Washington,
Trichloroethylene (TCE) Review Panel, 30827–30828 30807–30808
Project Waiver of Section 1605 (Buy American South Carolina Electric & Gas Co., 30807
Requirement) of the American Recovery and Availability of Environmentnal Assessment:
Reinvestment Act of 2009: City of Nashua, Iowa, 30808
Canaan Valley Public Service District, West Virginia, Combined Filings, 30808–30811
30828–30829 FERC Attendance at Entergy Regional State Committee
Registration Applications: Meeting, 30811–30812
Antimicrobial Pesticide Products, 30829–30830 Technical Conferences:
Settlement: Frequency Regulation Compensation in the Organized
Cooksey Brothers Landfill Fire Superfund Site; Ashland, Wholesale Power Markets, 30812
Boyd County, Kentucky, 30831
Federal Highway Administration
Executive Office of the President NOTICES
See Science and Technology Policy Office Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 30898–30899
Farm Credit Administration Supplemental Draft Environmental Impact Statement:
RULES U.S. 231 Dubois County, IN, 30902
Organization; Eligibility and Scope of Financing; etc.,
30687 Federal Mediation and Conciliation Service
RULES
Federal Aviation Administration Arbitration Services, 30704–30706
RULES
Airworthiness Directives:
Turbomeca Arriel 2B1 Turboshaft Engines, 30687–30689 Federal Motor Carrier Safety Administration
NOTICES
Civil Penalty Inflation Adjustment for Commercial Space
Adjudications, 30690–30693 Meetings; Sunshine Act, 30900
Minimum Altitudes for IFR Operations, 30690
Modification of Class C Airspace: Federal Reserve System
Beale Air Force Base, CA, 30689–30690 NOTICES
PROPOSED RULES Change in Bank Control Notices; Acquisition of Shares of
Airworthiness Directives: Bank or Bank Holding Companies, 30831
Bombardier, Inc. Model CL–600 2B16 (CL 604 Variants Formations of, Acquisitions by, and Mergers of Bank
(Including CL–605 Marketing Variant)) Airplanes, Holding Companies, 30831
30740–30742
Modification of the Process for Requesting a Waiver of the
Mandatory Separation Age of 56 for Air Traffic Control Fish and Wildlife Service
PROPOSED RULES
Specialists, 30742–30745
Proposed Revocation and Establishment of Class E Endangered and Threatened Species:
Airspace: Proposed Listing of Nine Distinct Population Segments of
Northeast, AK, 30746–30747 Loggerhead Sea Turtles, 30769
NOTICES Endangered and Threatened Wildlife and Plants:
Finding of No Significant Impact (FONSI) and Record of 12-Month Finding on a Petition to Delist Cirsium
Decision (ROD): vinaceum (Sacramento Mountains thistle), 30757–
Final Environmental Assessment (FEA) for the Proposed 30769
Federal Action at the Macon County Airport,
Franklin, NC, 30899 Food and Drug Administration
Fourth Meeting; RTCA Special Committee 223: NOTICES
Airport Surface Wireless Communications, 30899–30900 Eligibility; Request for Data and Information:
Tenth Meeting; RTCA Special Committee 209: Drometrizole Trisiloxane Eligibility for Potential
Joint Session with EUROCAE WG 49: ATCRBS / Mode S Inclusion in Sunscreen Monograph, 30838–30839
Transponder MOPS Maintenance, 30903 Meetings:
Cardiovascular and Renal Drugs Advisory Committee,
Federal Communications Commission 30839
PROPOSED RULES Withdrawal of Food Additive Petition:
FM Table of Allotments, Pacific Junction, IA, 30756–30757 General Mills, Inc., 30844–30845
Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Contents V
Foreign-Trade Zones Board Indian Health Service

NOTICES NOTICES
Application for Reorganization/Expansion under Statutorily Mandated Single Source Award, 30842–30844
Alternative Site Framework:
Foreign-Trade Zone 46 – Cincinnati, OH, 30774–30775 Interior Department
Grant of Authority for Subzone Status: See Fish and Wildlife Service
Port Everglades, FL; South Florida Materials Corp., 30777 See Geological Survey
Waterloo, Iowa; Deere and Co., 30776–30777 See Land Management Bureau
Reorganization/Expansion of Foreign-Trade Zone 20, See National Park Service
Hampton Roads, VA, 30782–30783 See Reclamation Bureau
Forest Service Internal Revenue Service

NOTICES NOTICES
Meetings: Agency Information Collection Activities; Proposals,
Kisatchie National Forest Resource Advisory Committee, Submissions, and Approvals, 30903–30908
30771–30772
Shasta County Resource Advisory Committee, 30771 International Trade Administration
Southern New Mexico Resource Advisory Committee, NOTICES
30772 Exemption of Foreign Air Carriers From Excise Taxes;
Tuolumne–Mariposa Counties Resource Advisory Review of Finding of Reciprocity, 30776
Committee, 30771 Initiation of Five-Year (Sunset) Review, 30777–30779
Reopening of the Application Period for Membership on
Geological Survey the Manufacturing Council, 30781–30782
NOTICES
Meetings:
International Trade Commission
National Geospatial Advisory Committee, 30855
NOTICES
Investigations:
Government Ethics Office
Certain Lighting Products, 30855–30856
NOTICES
Remand Proceedings:
Ball Bearings from Japan and the United Kingdom,
Submissions, and Approvals
30856–30857
Comment Request for an Unmodified SF 278 Executive
Branch Personnel Public Financial Disclosure Report,
30831–30832 Justice Department
See Drug Enforcement Administration
Health and Human Services Department See Justice Programs Office
NOTICES
See Centers for Disease Control and Prevention
See Centers for Medicare & Medicaid Services
Submissions, and Approvals:
See Food and Drug Administration
Applications for the Attorney Student Loan Repayment
See Health Resources and Services Administration
Program, 30857–30858
See Indian Health Service
Department of Justice Procurement Blanket Clearance,
See Substance Abuse and Mental Health Services
30858
Administration
NOTICES
Consent Decree Under the Clean Air Act, 30859
National Biodefense Science Board; Call for Nominees, Consent Decree Under the Comprehensive Environmental
30832–30833 Response, Compensation, and Liability Act, 30859
Health Resources and Services Administration Justice Programs Office

NOTICES NOTICES
Request for Nominations for Voting Members: Meetings:
Advisory Commission on Childhood Vaccines, 30841– Public Safety Officer Medal of Valor Review Board,
30842 30859–30860
Homeland Security Department Labor Department

See Coast Guard See Wage and Hour Division
Housing and Urban Development Department Land Management Bureau

NOTICES NOTICES
Agency Information Collection Activities; Proposals, Final Supplementary Rules for Camping on Undeveloped
Submissions, and Approvals: Public Lands in Montana, North Dakota, and South
Monthly Report of Excess Income and Annual Report of Dakota, 30850–30852
Uses of Excess Income; Correction, 30846–30847 Meetings:
Multifamily Project Monthly Accounting Reports, 30846 California Desert District Advisory Council, 30855
Request Voucher for Grant Payment and Line of Credit
Control System, etc., 30845–30846 National Aeronautics and Space Administration
Federal Property Suitable as Facilities to Assist the NOTICES
Homeless, 30847–30849 Intent to Grant Partially Exclusive License, 30862
VI Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Contents
National Archives and Records Administration Patent and Trademark Office

NOTICES NOTICES
Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 30863 Submissions, and Approvals:
Nixon Presidential Historical Materials: United States Patent Applicant Survey, 30773–30774
Opening of Materials, 30863–30864
Pension Benefit Guaranty Corporation
National Highway Traffic Safety Administration NOTICES
NOTICES Agency Information Collection Activities; Proposals,
Receipt of Applications for Temporary Exemption from Submissions, and Approvals:
Advanced Air Bag Requirements: Locating and Paying Participants, 30865–30866
Fisker Automotive, 30900–30902
Personnel Management Office
NOTICES
National Institute of Standards and Technology Agency Information Collection Activities; Proposals,
NOTICES
Jointly Owned Invention Available for Licensing, 30779
Meetings: Postal Regulatory Commission
National Conference on Weights and Measures (95th NOTICES
Annual), 30780–30781 New Postal Products, 30868–30870
National Oceanic and Atmospheric Administration Reclamation Bureau

RULES NOTICES
Atlantic Highly Migratory Species: Intent to Accept Proposals, Select Lessee, and Contract:
2010 Atlantic Bluefin Tuna Quota Specifications, 30732– Hydroelectric Power Development at Ridgway Dam;
30739 Dallas Creek Project, Colorado, 30852–30854
Atlantic Bluefin Tuna Fisheries, 30730–30732
Endangered and Threatened Wildlife and Plants: Risk Management Agency
Final Rulemaking to Establish Take Prohibitions for the NOTICES
Threatened Southern Distinct Population Segment of Agency Information Collection Activities; Proposals,
North American Green Sturgeon, 30714–30730 Submissions, and Approvals, 30770
Fisheries of the Northeastern United States:
Summer Flounder Fishery; Quota Transfer, 30739 Science and Technology Policy Office
PROPOSED RULES NOTICES
Endangered and Threatened Species: Meetings:
Proposed Listing of Nine Distinct Population Segments of National Nanotechnology Initiative (NNI) Strategic
Loggerhead Sea Turtles, 30769 Planning Stakeholder Workshop, 30874–30875
NOTICES
Availability of Seats for the Monitor National Marine Securities and Exchange Commission
NOTICES
Sanctuary Advisory Council, 30775
Extension of Application Period for Seats for the Channel Applications:
Islands National Marine Sanctuary Advisory Council, Hercules Technology Growth Capital, Inc., 30875–30876
30776 Meetings; Sunshine Act, 30876
Meetings: Self-Regulatory Organizations; Proposed Rule Changes:
Fisheries of the Exclusive Economic Zone off Alaska; Chicago Board Options Exchange, Inc., 30889–30890
Stock Assessment of Eastern Bering Sea Pollock, etc., Municipal Securities Rulemaking Board, 30876–30887,
30779–30780 30892–30897
NASDAQ Stock Market LLC, 30887–30889
New York Stock Exchange LLC, 30890–30892
National Park Service
NOTICES Small Business Administration
Availability of Draft General Management Plan/ NOTICES
Environmental Impact Statement: Disaster Declarations:
Lincoln Home National Historic Site, Illinois, 30849– Arkansas, 30872
30850 Florida, 30870
Kentucky, 30870, 30873
Navy Department Massachusetts, 30872
NOTICES Mississippi, 30871
Intent to Grant Exclusive Patent License: New Hampshire, 30872
AmberWave Systems Corp., 30794–30795 North Carolina, 30873
North Dakota, 30871
Nuclear Regulatory Commission Oklahoma, 30871–30872

NOTICES South Dakota, 30873
Availability of Standard Review Plan for the Review of a Tennessee, 30870–30871, 30873–30874
License Application for a Fuel Cycle Facility, 30864
Meetings: Social Security Administration
Advisory Committee on Reactor Safeguards; ACRS RULES
Subcommittee on AP1000, 30864–30865 Revised Medical Criteria for Evaluating Hearing Loss,
Meetings; Sunshine Act, 30865 30693–30704
Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Contents VII
NOTICES Six-Month Post-Exit Focus Interview of Former VHA

Agency Information Collection Activities; Proposals, Employees, 30914–30915
Submissions, and Approvals, 30897–30898 Computer Matching Program between the Department of
Veterans Affairs and the Department of Defense,
Substance Abuse and Mental Health Services 30915–30916
Administration
Wage and Hour Division
NOTICES
NOTICES
Surface Transportation Board
RULES
Removal of Delegations of Authority to Secretary, 30711– Separate Parts In This Issue
30714
Part II
Transportation Department Health and Human Services Department, Centers for
See Federal Aviation Administration Medicare & Medicaid Services, 30918–31222
See Federal Highway Administration
See Federal Motor Carrier Safety Administration Part III
See National Highway Traffic Safety Administration Energy Department, 31224–31271
See Surface Transportation Board
Treasury Department
See Community Development Financial Institutions Fund Reader Aids
See Internal Revenue Service Consult the Reader Aids section at the end of this page for
phone numbers, online resources, finding aids, reminders,
Veterans Affairs Department and notice of recently enacted public laws.
NOTICES To subscribe to the Federal Register Table of Contents
Agency Information Collection Activities; Proposals, LISTSERV electronic mailing list, go to http://
Submissions, and Approvals: listserv.access.gpo.gov and select Online mailing list
HUD/VA Addendum to Uniform Residential Loan archives, FEDREGTOC-L, Join or leave the list (or change
Application, 30915 settings); then follow the instructions.
VIII Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Contents
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the
Reader Aids section at the end of this issue.
10 CFR
Proposed Rules:
430...................................31224
12 CFR
611...................................30687
613...................................30687
615...................................30687
619...................................30687
620...................................30687
14 CFR
39.....................................30687
71.....................................30689
91.....................................30690
406...................................30690
Proposed Rules:
39.....................................30740
65.....................................30742
71.....................................30746
20 CFR
404...................................30693
29 CFR
1404.................................30704
33 CFR
165 (2 documents) .........30706,
30708
Proposed Rules:
117 (2 documents) .........30747,
30750
165...................................30753
40 CFR
52.....................................30710
42 CFR
Proposed Rules:
412 (2 documents) .........30756,
30918
413 (2 documents) .........30756,
30918
47 CFR
Proposed Rules:
73.....................................30756
49 CFR
1002.................................30711
1011.................................30711
1152.................................30711
1180.................................30711
50 CFR
223...................................30714
635 (2 documents) .........30730,
30732
648...................................30739
Proposed Rules:
17 (2 documents) ...........30757,
30769
223...................................30769
224...................................30769
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30687
Rules and Regulations Federal Register

Vol. 75, No. 105
This section of the FEDERAL REGISTER Virginia 22102–5090, (703) 883–4020, Facility, U.S. Department of
contains regulatory documents having general TTY (703) 883–4020. Transportation, 1200 New Jersey
applicability and legal effect, most of which (12 U.S.C. 2252(a)(9) and (10)) Avenue, SE., West Building Ground
are keyed to and codified in the Code of Floor, Room W12–140, Washington, DC
Federal Regulations, which is published under Dated: May 26, 2010.
20590–0001.
50 titles pursuant to 44 U.S.C. 1510. Roland E. Smith,
Secretary, Farm Credit Administration Board. FOR FURTHER INFORMATION CONTACT:
The Code of Federal Regulations is sold by Kevin Dickert, Aerospace Engineer,
the Superintendent of Documents. Prices of [FR Doc. 2010–13110 Filed 6–1–10; 8:45 am]
Engine Certification Office, FAA, Engine
new books are listed in the first FEDERAL BILLING CODE 6705–01–P
REGISTER issue of each week. & Propeller Directorate, 12 New England
Executive Park, Burlington, MA 01803;
e-mail: kevin.dickert@faa.gov; telephone
DEPARTMENT OF TRANSPORTATION (781) 238–7117; fax (781) 238–7199.
FARM CREDIT ADMINISTRATION
Federal Aviation Administration SUPPLEMENTARY INFORMATION:
12 CFR Parts 611, 613, 615, 619 and
620 14 CFR Part 39 Discussion
RIN 3052–AC43 We issued a notice of proposed
[Docket No. FAA–2007–27009; Directorate
Identifier 2007–NE–02–AD; Amendment 39– rulemaking (NPRM) to amend 14 CFR
Organization; Eligibility and Scope of 16322; AD 2007–19–09R1] part 39 to include an AD that would
Financing; Funding and Fiscal Affairs, apply to the specified products. That
Loan Policies and Operations, and RIN 2120–AA64
NPRM was published in the Federal
Funding Operations; Definitions; and Register on March 22, 2010 (75 FR
Disclosure to Shareholders; Director Airworthiness Directives; Turbomeca
Arriel 2B1 Turboshaft Engines 13451). That NPRM proposed to correct
Elections; Effective Date an unsafe condition for the specified
AGENCY: Farm Credit Administration. AGENCY: Federal Aviation products. The MCAI states that:
ACTION: Notice of effective date.
Administration (FAA), DOT. Since the issuance of AD 2007–0126
ACTION: Final rule. Turbomeca has released modification TU157
SUMMARY: The Farm Credit which consists in modifying the pressure
Administration (FCA or Agency), SUMMARY: We are revising an existing relief valve of the HMU by introducing a
through the FCA Board (Board), issued airworthiness directive (AD) for the damping device into the valve. Introduction
a final rule under parts 611, 613, 615, products listed above. This AD results of this device has demonstrated to decrease
619 and 620 on April 12, 2010 (75 FR from mandatory continuing the pressure fluctuations in the system,
18726) amending FCA’s regulations to airworthiness information (MCAI) therefore reducing significantly the risk of
clarify director election processes and issued by an aviation authority of wear of the delta-P diaphragm fabric. This
update FCA regulations to incorporate another country to identify and correct will delete the need for a periodical
interpretations made through an unsafe condition on an aviation replacement of the delta-P diaphragm before
product. The MCAI describes the unsafe overhaul of the HMU. The modification
bookletters to Farm Credit System
condition as: TU157 is therefore considered as the
institutions. In accordance with 12
terminating action for this AD.
U.S.C. 2252, the effective date of the Since the issuance of AD 2007–0126
final rule is 30 days from the date of Turbomeca has released modification TU157 Comments
publication in the Federal Register which consists in modifying the pressure
during which either or both Houses of relief valve of the HMU by introducing a We gave the public the opportunity to
Congress are in session. Based on the damping device into the valve. Introduction participate in developing this AD. We
records of the sessions of Congress, the of this device has demonstrated to decrease
the pressure fluctuations in the system,
received no comments on the NPRM or
effective date of the regulations is May therefore reducing significantly the risk of on the determination of the cost to the
24, 2010. wear of the delta-P diaphragm fabric. This public.
DATES: Effective Date: Under the will delete the need for a periodical
Mandatory Service Bulletin Reference
authority of 12 U.S.C. 2252, the replacement of the delta-P diaphragm before
overhaul of the HMU. The modification Added
regulation amending 12 CFR parts 611,
613, 615, 619 and 620 published on TU157 is therefore considered as the
Since we issued the proposed AD,
April 12, 2010 (75 FR 18726) is effective terminating action for this AD.
Turbomeca issued Mandatory Service
May 24, 2010. We are issuing this AD to prevent the Bulletin (MSB) No. 292 73 2818,
FOR FURTHER INFORMATION CONTACT: loss of automatic control mode coupled Version C, dated January 29, 2009. We
with the deteriorated performance of the
WReier-Aviles on DSKGBLS3C1PROD with RULES
Elna Luopa, Senior Corporate Analyst, added that reference to paragraph

Office of Regulatory Policy, Farm backup mode, which can lead to the (e)(2)(iii) of the AD.
Credit Administration, McLean, inability to continue safe flight, forced
autorotation landing, or an accident. Conclusion
Virginia 22102–5090, (703) 883–4498,
TTY (703) 883–4434, or DATES: This AD becomes effective July We reviewed the available data and
Laura D. McFarland, Senior Counsel, 7, 2010. determined that air safety and the
Office of General Counsel, Farm ADDRESSES: The Docket Operations public interest require adopting the AD
Credit Administration, McLean, office is located at Docket Management with the change described previously.
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30688 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations
Differences Between This AD and the We prepared a regulatory evaluation therefore reducing significantly the risk of
MCAI or Service Information of the estimated costs to comply with wear of the delta-P diaphragm fabric. This
this AD and placed it in the AD docket. will delete the need for a periodical
The MCAI applies to the ARRIEL 2B1 replacement of the delta-P diaphragm before
and 2B1A engines. The ARRIEL 2B1A Examining the AD Docket overhaul of the HMU. The modification
engine is not type certificated in the You may examine the AD docket on TU157 is therefore considered as the
United States, so this AD applies to the terminating action for this AD.
the Internet at http://
ARRIEL 2B1 engine model only. www.regulations.gov; or in person at the We are issuing this AD to prevent the loss of
automatic control mode coupled with the
Costs of Compliance Docket Operations office between 9 a.m.
deteriorated performance of the backup
and 5 p.m., Monday through Friday, mode, which can lead to the inability to
Based on the service information, we except Federal holidays. The AD docket continue safe flight, forced autorotation
estimate that this AD will affect about contains this AD, the regulatory landing, or an accident.
103 products of U.S. registry. We also evaluation, any comments received, and
estimate that it will take about 0.75 other information. The street address for Actions and Compliance
work-hour per product to comply with the Docket Operations office (phone (e) Unless already done, do the following
this AD. The average labor rate is $85 (800) 647–5527) is provided in the actions.
per work-hour. Required parts will cost ADDRESSES section. Comments will be (1) For ARRIEL 2B1 engines that
about $10,550 per product. Based on incorporate modification TU157, no further
available in the AD docket shortly after
these figures, we estimate the cost of the action is required.
receipt. (2) For all other ARRIEL 2B1 engines do
AD on U.S. operators to be $1,093,216.
List of Subjects in 14 CFR Part 39 the following:
Authority for This Rulemaking (i) Replace the hydromechanical metering
Air transportation, Aircraft, Aviation unit (HMU) with a serviceable HMU before
Title 49 of the United States Code safety, Safety. the HMU accumulates 1,500 hours-since-
specifies the FAA’s authority to issue new, hours-since-last-overhaul (HSO), or
rules on aviation safety. Subtitle I, Adoption of the Amendment
since incorporation of Turbomeca Service
section 106, describes the authority of ■ Accordingly, under the authority Bulletin (SB) No. 292 73 2105, whichever
the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, occurs later.
Aviation Programs,’’ describes in more the FAA amends 14 CFR part 39 as (ii) Thereafter, replace the HMU with a
detail the scope of the Agency’s serviceable HMU at every 1,500 hours-since
follows: new, since last overhaul, or since
authority. incorporation of Turbomeca SB No. 292 73
We are issuing this rulemaking under PART 39—AIRWORTHINESS 2105, whichever occurs later.
the authority described in ‘‘Subtitle VII, DIRECTIVES (iii) For the purposes of this AD, a
Part A, Subpart III, Section 44701: ■ 1. The authority citation for part 39 serviceable HMU is an HMU fitted with a
General requirements.’’ Under that continues to read as follows: new constant delta P diaphragm in
section, Congress charges the FAA with accordance with Turbomeca Mandatory
Authority: 49 U.S.C. 106(g), 40113, 44701. Service Bulletin (MSB) No. 292 73 2818,
promoting safe flight of civil aircraft in
air commerce by prescribing regulations Original Issue, Dated October 18, 2006,
§ 39.13 [Amended] Update No. 1, dated April 3, 2007, or Version
for practices, methods, and procedures C, dated January 29, 2009.
■ 2. The FAA amends § 39.13 by
the Administrator finds necessary for
removing amendment 39–15200 (72 FR Optional Terminating Action
safety in air commerce. This regulation
53112, September 18, 2007), and adding
is within the scope of that authority (3) Replacing the HMU with an HMU that
the following new AD: has been modified to TU157 terminates the
because it addresses an unsafe condition
that is likely to exist or develop on 2007–19–09R1 Turbomeca: Amendment repetitive requirement of paragraph (e)(2)(ii)
products identified in this rulemaking 39–16322. Docket No. FAA–2007–27009; of this AD.
action. Directorate Identifier 2007–NE–02–AD.
FAA AD Differences
Effective Date (f) This AD differs from the Mandatory
Regulatory Findings
(a) This airworthiness directive (AD) Continuing Airworthiness Information
We determined that this AD will not becomes effective July 7, 2010. (MCAI) because the MCAI applies to the
have federalism implications under ARRIEL 2B1 and 2B1A engines. The ARRIEL
Affected ADs
Executive Order 13132. This AD will 2B1A engine is not type certificated in the
not have a substantial direct effect on (b) This AD revises AD 2007–19–09, United States, so this proposed AD applies to
Amendment 39–15200. the ARRIEL 2B1 engine model only.
the States, on the relationship between
the national government and the States, Applicability Alternative Methods of Compliance
or on the distribution of power and (c) This AD applies to Turbomeca ARRIEL (AMOCs)
responsibilities among the various 2B1 turboshaft engines that don’t incorporate (g) The Manager, Engine Certification
levels of government. modification TU157. These engines are Office, FAA, has the authority to approve
For the reasons discussed above, I installed on, but not limited to, Eurocopter AMOCs for this AD, if requested using the
certify this AD: AS 350 B3 and EC 130 B4 helicopters. procedures found in 14 CFR 39.19.
1. Is not a ‘‘significant regulatory Reason Related Information
action’’ under Executive Order 12866; (d) European Aviation Safety Agency (h) Contact Kevin Dickert, Aerospace
2. Is not a ‘‘significant rule’’ under the (EASA) AD No. 2009–0091, dated May 4, Engineer, Engine Certification Office, FAA,
DOT Regulatory Policies and Procedures 2009, states: Engine & Propeller Directorate, 12 New
(44 FR 11034, February 26, 1979); and Since the issuance of AD 2007–0126 England Executive Park, Burlington, MA
Turbomeca has released modification TU157 01803; e-mail: kevin.dickert@faa.gov;
3. Will not have a significant which consists in modifying the pressure telephone (781) 238–7117; fax (781) 238–
economic impact, positive or negative, relief valve of the HMU by introducing a 7199, for more information about this AD.
on a substantial number of small entities damping device into the valve. Introduction
under the criteria of the Regulatory of this device has demonstrated to decrease Material Incorporated by Reference
Flexibility Act. the pressure fluctuations in the system, (i) None.
Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30689
Issued in Burlington, Massachusetts, on the ongoing airport operational This rulemaking is promulgated
May 24, 2010. requirements. under the authority described in subtitle
Peter A. White, VII, part A, subpart I, section 40103.
The Rule
Assistant Manager, Engine and Propeller Under that section, the FAA is charged
Directorate, Aircraft Certification Service. This action amends Title 14 Code of with prescribing regulations to assign
[FR Doc. 2010–13133 Filed 6–1–10; 8:45 am] Federal Regulations (CFR) part 71 by the use of the airspace necessary to
BILLING CODE 4910–13–P
modifying the legal description of the ensure the safety of aircraft and the
Beale AFB, CA, Class C airspace area. efficient use of airspace. This regulation
The Beale AFB Class C airspace area is is within the scope of that authority as
DEPARTMENT OF TRANSPORTATION designated effective during the specific it modifies Class C airspace for Beale
dates and times established in advance AFB, CA.
Federal Aviation Administration by NOTAM. The effective days and
times will thereafter be continuously Environmental Review
14 CFR Part 71 published in the Airport/Facility The FAA has determined that this
Directory, in concert with current Beale action qualifies for categorical exclusion
[Docket No. FAA–2010–0367; Airspace
Docket No. 10–AWA–2] AFB ATCT operating hours. During the under the National Environmental
times that Beale ATCT is not Policy Act in accordance with FAA
RIN 2120–AA66 operational, the airspace reverts to Class Order 1050.1E, ‘‘Environmental Impacts:
E airspace. Policies and Procedures,’’ paragraph
Modification of Class C Airspace; Class C Airspace areas are published 311a. This airspace action is not
Beale Air Force Base, CA in paragraph 4000 of FAA Order expected to cause any potentially
AGENCY: Federal Aviation 7400.9T signed August 27, 2009, and significant environmental impacts, and
Administration (FAA), DOT. effective September 15, 2009, which is no extraordinary circumstances exist
incorporated by reference in 14 CFR that warrant preparation of an
ACTION: Final rule.
71.1. The Class C airspace listed in this environmental assessment.
SUMMARY: This action modifies the legal document will be published
subsequently in the Order. List of Subjects in 14 CFR Part 71
description of the Beale Air Force Base
(AFB), CA, Class C airspace area by In consideration of the need to change Airspace, Incorporation by reference,
allowing the hours of operation to be the Beale AFB Class C airspace effective Navigation (air).
announced in advance by a Notice to hours of operation to be consistent with
the actual operating hours of the Beale Adoption of the Amendment
Airmen (NOTAM). The effective hours
of the Beale AFB Class C airspace area AFB ATCT, and conform with FAA In consideration of the foregoing, the
will be consistent with the actual hours regulations for Class C airspace, the Federal Aviation Administration
of operation of the Beale AFB Airport FAA finds good cause, pursuant to amends 14 CFR part 71 as follows:
Traffic Control Tower (ATCT). U.S.C. 553(d), for making this
amendment effective in less than 30 PART 71—DESIGNATION OF CLASS A,
DATES: Effective date 0901 UTC, June B, C, D, AND E AIRSPACE AREAS; AIR
days in order to promote the safe and
18, 2010. The Director of the Federal efficient handling of air traffic in the TRAFFIC SERVICE ROUTES; AND
Register approves this incorporation by area. REPORTING POINTS
reference action under 1 CFR part 51, The FAA has determined that this
subject to the annual revision of FAA regulation only involves an established ■ 1. The authority citation for part 71
Order 7400.9 and publication of body of technical regulations for which continues to read as follows:
conforming amendments. frequent and routine amendments are Authority: 49 U.S.C. 106(g), 40103, 40113,
FOR FURTHER INFORMATION CONTACT: Ken necessary to keep them operationally 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
McElroy, Airspace and Rules Group, current. Therefore, this regulation: (1) Is 1963 Comp., p. 389.
Office of System Operations Airspace not a ‘‘significant regulatory action’’ § 71.1 [Amended]
and AIM, Federal Aviation under Executive Order 12866; (2) is not
Administration, 800 Independence a ‘‘significant rule’’ under Department of ■ 2. The incorporation by reference in
Avenue, SW., Washington, DC 20591; Transportation (DOT) Regulatory 14 CFR 71.1 of FAA Order 7400.9T,
telephone: (202) 267–8783. Policies and Procedures (44 FR 11034; Airspace Designations and Reporting
SUPPLEMENTARY INFORMATION: February 26, 1979); and (3) does not Points, signed August 27, 2009, and
warrant preparation of a regulatory effective September 15, 2009, is
History amended as follows:
evaluation as the anticipated impact is
The Beale AFB ATCT has reduced its so minimal. Since this is a routine Paragraph 4000 Subpart C—Class C
hours of operation. During the times matter that will only affect air traffic Airspace.
that Beale ATCT is not operational, procedures and air navigation, it is * * * * *
Class C ATC Services are not available certified that this rule, when
and the airspace reverts to Class E promulgated, will not have a significant AWP CA C Beale AFB, CA [Modified]
airspace. A requirement for Class C economic impact on a substantial Beale AFB, CA
airspace is an operational ATCT. During number of small entities under the (Lat. 39°08′10″ N., long. 121°26′12″ W.)
the times that Beale ATCT is closed, criteria of the Regulatory Flexibility Act. That airspace extending upward from the
Class C air traffic services are not The FAA’s authority to issue rules surface to and including 4,100 feet MSL
available. Therefore, there is a need to regarding aviation safety is found in within a 5-mile radius of Beale AFB, and that
publish the effective hours of operation Title 49 of the United States Code. airspace extending upward from 1,600 feet
MSL to 4,100 feet MSL within a 10-mile
for the Beale AFB Class C airspace area Subtitle I, Section 106 describes the radius of Beale AFB from the 127° bearing
to coincide with those times that Class authority of the FAA Administrator. from the airport clockwise to the 007° bearing
C ATC services are available. The Beale Subtitle VII, Aviation Programs, from the airport, and that airspace extending
AFB Class C airspace area remains an describes in more detail the scope of the upward from 2,600 feet MSL to 4,100 feet
essential safety measure in support of agency’s authority. MSL within a 10-mile radius of the airport
from the 007° bearing from the airport Good Cause for Immediate Adoption of DEPARTMENT OF TRANSPORTATION
clockwise to the 127° bearing from the This Final Rule
airport. This Class C airspace area is effective Federal Aviation Administration
during the specific dates and times Until recently, the FAA was unaware
established in advance by a Notice to of the erroneous amendment to this 14 CFR Part 406
Airmen. The effective date and time will
regulation and its impact on minimum
thereafter be continuously published in the [Docket No. FAA–2009–1240; Amendment
Airport/Facility Directory. vectoring altitudes. The FAA concludes
No. 406–6]
that immediate action is necessary to
Issued in Washington, DC, May 25, 2010.
correct this error and therefore, finds RIN 2120–AJ63
Edith V. Parish,
that notice and public comment under
Manager, Airspace and Rules Group. 5 U.S.C. 553(b) are impracticable and Civil Penalty Inflation Adjustment for
[FR Doc. 2010–13137 Filed 6–1–10; 8:45 am] contrary to the public interest. Further, Commercial Space Adjudications
BILLING CODE 4910–13–P the FAA finds that good cause exists AGENCY: Federal Aviation
under 5 U.S.C. 553(d) for making this Administration, DOT.
rule effective immediately upon ACTION: Final rule.
DEPARTMENT OF TRANSPORTATION
publication.
Federal Aviation Administration SUMMARY: This final rule brings Federal
List of Subjects in 14 CFR Part 91
Aviation Administration commercial
14 CFR Part 91 Air traffic control, Aircraft, Airmen, space transportation regulations into
Aviation safety, Reporting and compliance with the Federal Civil
recordkeeping requirements. Penalties Inflation Adjustment Act of
[Docket No. FAA–2010–0563; Amendment
No. 91–315 (Related to Docket No. FAA– 1990, as amended by the Debt
18334)] The Amendment Collection Improvement Act of 1996.
The rule makes mandatory inflation-
Minimum Altitudes for IFR Operations ■ In consideration of the foregoing, the based adjustments to the maximum civil
Federal Aviation Administration penalty contained in 14 CFR part 406
AGENCY: Federal Aviation amends Chapter 1 of Title 14, Code of authorized for violations of the
Administration (FAA), DOT. Federal Regulations, as follows: Commercial Space Launch Act of 1984,
ACTION: Technical amendment. as codified at 49 U.S.C. subtitle IX, ch.
PART 91—GENERAL OPERATING AND 701, Commercial Space Launch
FLIGHT RULES Activities.
SUMMARY: The FAA is correcting the
introductory text in paragraph (a) of ■ 1. The authority citation for part 91 DATES: This amendment becomes
§ 91.177 that was published on August continues to read as follows: effective July 2, 2010.
18, 1989. The phrase, ‘‘or unless FOR FURTHER INFORMATION CONTACT:
otherwise authorized by the Authority: 49 U.S.C. 106(g), 1155, 40103, Laura Montgomery, Senior Attorney,
Administrator’’ was inadvertently 40113, 40120, 44101, 44111, 44701, 44704,
Office of the Chief Counsel, Regulations
removed from paragraph (a) 44709, 44711, 44712, 44715, 44716, 44717,
Division, AGC–200, Federal Aviation
introductory text. This action reinstates 44722, 46306, 46315, 46316, 46504, 46506–
Administration, 800 Independence
that phrase with a minor revision. 46507, 47122, 47508, 47528–47531, articles
Avenue, SW., Washington, DC 20591;
12 and 29 of the Convention on International
DATES: Effective June 2, 2010. telephone (202) 267–3150; facsimile
Civil Aviation (61 Stat. 1180).
(202) 267–7971; e-mail
FOR FURTHER INFORMATION CONTACT: laura.montgomery@faa.gov.
■ 2. Amend § 91.177 by revising
Ellen Crum, Air Traffic Systems
paragraph (a) introductory text to read SUPPLEMENTARY INFORMATION:
Operations, Airspace and Rules Group,
800 Independence Ave., SW., as follows:
Authority for This Rulemaking and
Washington, DC 20591; telephone (202) § 91.177 Minimum altitudes for IFR Applicable Statutes
267–8783; e-mail ellen.crum@faa.gov. operations.
The statute under which the Secretary
SUPPLEMENTARY INFORMATION: (a) Operation of aircraft at minimum of Transportation regulates commercial
Background altitudes. Except when necessary for space transportation, 49 U.S.C. Subtitle
takeoff or landing, or unless otherwise IX, sections 70101–70121 (chapter 701),
On August 18, 1989 (54 FR 34288), authorized by the FAA, no person may provides for the Department of
the FAA published a final rule that operate an aircraft under IFR below— Transportation (DOT), and, through
revised 14 CFR part 91. In the final rule, delegation, the Federal Aviation
the phrase in § 91.177 (a) introductory * * * * * Administration (FAA) to impose civil
text ‘‘unless otherwise authorized by the Issued in Washington, DC on May 27, penalties on persons who violate
Administrator’’ was inadvertently 2010. chapter 701, a regulation issued under
removed. The impact of this action was Pamela Hamilton-Powell, chapter 701, or any term or condition of
not apparent until the FAA recently Director, Office of Rulemaking. a license or permit issued or transferred
amended the guidelines for establishing [FR Doc. 2010–13132 Filed 6–1–10; 8:45 am]
under chapter 701. 49 U.S.C.
minimum vectoring altitudes. Without 70105a(h)(i), 70115.

this phrase in the regulation, certain This rule implements the Federal
altitudes are unavailable to air traffic Civil Penalties Inflation Adjustment Act
control. This action corrects this error of 1990 (FCPIAA), Public Law (Pub. L.)
with a minor revision. We are replacing 101–410, as amended by the Debt
the word ‘‘Administrator’’ with ‘‘FAA’’. Collection Improvement Act of 1996,
The new phrase will read ‘‘unless Public Law 104–134, codified at 28
otherwise authorized by the FAA’’. U.S.C. 2461 note.
The FCPIAA requires Federal civil penalty becomes $110,000 promote compliance with the law. This
agencies to adjust minimum and ($100,000 + $10,000). rulemaking is ministerial, technical, and
maximum civil penalty amounts for Four years from now, when the next noncontroversial. The FCPIAA serves as
inflation to preserve their deterrent adjustment is due, we will employ the a Congressional mandate and the FAA
impact. Under these laws, each agency COLA methodology. It works as follows, may not exercise any discretion or
must make an initial inflationary using the current year only as an policy judgments. The FAA has no
adjustment for all applicable civil example. Were we using the COLA discretion as to the amount of the
monetary penalties, and further adjust method this year, we would first adjustment. Furthermore, it would be
these penalties at least once every 4 determine the appropriate CPI–U for contrary to the public interest to delay
years. The FCPIAA required the first June of the calendar year preceding the these adjustments in order to receive
adjustment to the maximum civil year of adjustment. For an adjustment in public comment because the regulation
penalty found in 14 CFR part 406 to 2010, we would use the CPI–U for June concerns a civil penalty for conduct that
have been made in 1996. of 2009, which was 215.693. We would is already illegal under existing law.
also determine the CPI–U for June of the Also, any delay would be unnecessary
Prior Rulemakings year the civil penalty came into force. as the FAA cannot change the method
This rule is the FAA’s initial Because the civil penalty came into of application of the mandatory
adjustment to the maximum civil force in 1984, we would use the CPI–U inflation adjustment as defined by the
penalty found in 14 CFR part 406 which for June of 1984, which was 103.7. FCPIAA.
governs commercial space Second, we would calculate the
COLA. To do this we would subtract the Paperwork Reduction Act
transportation adjudications. The FAA
has routinely adjusted for inflation civil CPI–U for June 1984 (103.7) from the The Paperwork Reduction Act of
CPI–U of June 2009 (215.693). Next, we 1995, 44 U.S.C. 3507(d), requires that
monetary penalties for aviation
would divide the resulting difference the FAA consider the impact of
contained in 14 CFR part 13. [See 61 FR
(111.993) by the CPI–U for June 1984 paperwork and other information
67445, Dec. 20, 1996, as amended by
(103.7). The resulting quotient (1.07997) collection burdens imposed on the
Amdt. 13–28, 62 FR 4134, Jan. 29, 1997;
is then multiplied by 100 yielding a public. The FAA has determined that
67 FR 6366, Feb. 11, 2002; Amdt. 13–
COLA of 107.997%. there are no current or new
33, 71 FR 28522, May 16, 2006; 71 FR Were this not our initial adjustment, requirements for information collection
47077, Aug. 16, 2006; 71 FR 52407, we would calculate the raw inflationary associated with this rule.
Sept. 6, 2006.] increase by multiplying the maximum
civil penalty ($100,000) by the COLA International Compatibility
Background
(107.997%). This would provide a raw In keeping with U.S. obligations
The FCPIAA determines inflationary inflation increase of $107,997. Next, we under the Convention on International
adjustments by increasing civil would round the raw inflation amounts Civil Aviation, it is FAA policy to
penalties by a cost-of-living adjustment by the statutory rounding formula found conform to International Civil Aviation
(COLA). The COLA for each civil in Section 5(a) of the FCPIAA. Organization (ICAO) Standards and
penalty is the percentage by which the Determination of the proper rounding Recommended Practices to the
U.S. Department of Labor’s Consumer formula depends on the current amount maximum extent practicable. The FAA
Price Index for all-urban consumers of the civil penalty at the time the has determined that there are no ICAO
(CPI–U) for the month of June of the calculation is made, not the size of the Standards and Recommended Practices
calendar year preceding the adjustment raw inflationary increase. The that correspond to these regulations.
exceeds the CPI–U for the month of June applicable rounding formula for the
of the calendar year in which the Regulatory Evaluation, Regulatory
existing civil penalty of $100,000 would
amount of such civil penalty was last set Flexibility Determination, International
be that ‘‘[a]ny increase * * * is rounded
or adjusted pursuant to the FCPIAA. Trade Impact Assessment, and
to the nearest * * *[m]ultiple of $5,000
The FCPIAA contains specific rules for Unfunded Mandates Assessment
in the case of penalties greater than
rounding the inflationary increase based $10,000 but less than or equal to Changes to Federal regulations must
on the initial amount of the civil penalty $100,000 * * *’’ Thus, the raw increase undergo several economic analyses.
being adjusted. However, the FCPIAA of $107,997 would become $105,000 First, Executive Order 12866 directs that
limits the increase to a maximum of ten after rounding. Finally, the increase of each Federal agency shall propose or
percent for the first adjustment. This $105,000 would be added to the initial adopt a regulation only upon a reasoned
limitation does not apply to subsequent civil penalty $100,000 for an adjusted determination that the benefits of the
adjustments. civil penalty of $205,000. intended regulations justify its costs.
Method of Calculation Second, the Regulatory Flexibility Act
Good Cause for Immediate of 1980 (RFA), Public Law 96–354,
14 CFR 406.9 states that under 49 Effectiveness of Final Rule codified at 5 U.S.C. 601–612, as
U.S.C. 70115(c)(1)(a) a maximum civil Under the Administrative Procedure amended by the Small Business
penalty of $100,000 is imposed for Act, 5 U.S.C. 553(b)(3)(B), a final rule Regulatory Enforcement Fairness Act of
violations of chapter 701, a regulation may be issued without public notice 1996, Public Law 104–121, requires
proscribed under chapter 701, or any and comment if the agency finds good agencies to analyze the economic
term or condition of a license or permit cause that notice and comment are impact of regulatory changes on small
issued or transferred under chapter 701. impractical, unnecessary, or contrary to entities. Third, the Trade Agreements
However, this rulemaking is our initial public interest. Good cause exists in this Act of 1999 (Trade Act), Public Law 96–
adjustment and any adjustment in civil rule to dispense with public notice and 39, codified at 19 U.S.C. 2501–2581,
penalty is limited by statute to a comment because adjustments to civil prohibits agencies from setting
maximum ten percent increase. Thus, penalties for inflation are required by standards that create unnecessary
instead of using the COLA, the penalty Congress, as set forth in Section 5 of the obstacles to the foreign commerce of the
is increased by ten percent of $100,000, FCPIAA, in order to maintain the U.S. In developing U.S. standards, the
which is $10,000. Therefore, the new deterrent effect of civil penalties and Trade Act requires agencies to consider
international standards and, where and a regulatory flexibility analysis is Executive Order 13132, Federalism. The
appropriate, that they be the basis of not required. The certification must FAA determined that this action would
U.S. standards. Fourth, the Unfunded include a statement providing the not have a substantial direct effect on
Mandates Reform Act of 1995, (Pub. L. factual basis for this determination, and the States, or the relationship between
104–4), codified at 2 U.S.C. 658, 1501– the reasoning should be clear. the national government and the States,
03, and 1531–34, requires agencies to As already noted, this rule adjusts for or on the distribution of power and
prepare a written assessment of the inflation only, as required by the responsibilities among the various
costs, benefits, and other effects of Federal Civil Penalties Inflation levels of government. Therefore, the
proposed or final rules that include a Adjustment Act of 1990. Therefore, as FAA has determined that this final rule
Federal mandate likely to result in the FAA Administrator, I certify that this does not have federalism implications.
expenditure by State, local, or tribal rule will not have a significant
governments, in the aggregate, or by the economic impact on a substantial Environmental Analysis
private sector, of $100 million or more, number of small entities. FAA Order 1050.1E defines FAA
in any one year (adjusted for inflation). actions that are categorically excluded
DOT Order 2100.5 prescribes policies International Trade Impact Assessment from preparation of an environmental
and procedures for simplification, The Trade Agreements Act of 1979 assessment or environmental impact
analysis, and review of regulations. If (Pub. L. 96–39) prohibits Federal statement under the National
the expected impact is so minimal that agencies from establishing any Environmental Policy Act (NEPA) in the
a proposed or final rule does not standards or engaging in related absence of extraordinary circumstances.
warrant a full evaluation, this order activities that create unnecessary The FAA has determined this final rule
permits that a statement to that effect obstacles to the foreign commerce of the qualifies for the categorical exclusion
and the basis for it be included in the United States. Legitimate domestic identified in Chapter 3, paragraph 312d,
preamble if a full regulatory evaluation objectives, such as safety, are not and involves no extraordinary
of the cost and benefits is not prepared. considered unnecessary obstacles. The circumstances.
Such a determination has been made for statute also requires consideration of
this final rule. The reasoning for this international standards and, where Regulations That Significantly Affect
determination is as follows. This rule appropriate, that they be the basis for Energy Supply, Distribution, or Use
adjusts for inflation the maximum civil U.S. standards. The FAA has analyzed this final rule
penalty for violations of the Commercial The FAA has assessed the potential under Executive Order 13211, Actions
Space Launch Act of 1984, to be in effect of this final rule and determined Concerning Regulations that
compliance with the Federal Civil that it would impose identical inflation Significantly Affect Energy Supply,
Penalties Inflation Adjustment Act of adjusted civil penalties on domestic and Distribution, or Use (May 18, 2001). We
1990. This inflation adjustment is an international entities that violate 14 CFR have determined that it is not a
economic transfer and not a social cost. part 406, and thus would have a neutral ‘‘significant energy action’’ under the
Regulatory Flexibility Determination trade impact. Furthermore, the executive order because it is not a
inflationary adjustment is a legitimate ‘‘significant regulatory action’’ under
The Regulatory Flexibility Act of 1980 domestic objective preserving the Executive Order 12866, and it is not
(Pub. L. 96–354) (RFA) establishes ‘‘as a existing deterrent impact of 49 U.S.C. likely to have a significant adverse effect
principle of regulatory issuance that subtitle IX, chapter 701. Therefore, we on the supply, distribution, or use of
agencies shall endeavor, consistent with have determined that this rule will energy.
the objectives of the rule and of result in a neutral impact on
applicable statutes, to fit regulatory and Availability of Rulemaking Documents
international trade.
informational requirements to the scale You can get an electronic copy of
of the businesses, organizations, and Unfunded Mandates Assessment rulemaking documents using the
governmental jurisdictions subject to Title II of the Unfunded Mandates Internet by—
regulation. To achieve this principle, Reform Act of 1995 (Pub. L. 104–4) 1. Searching the Federal eRulemaking
agencies are required to solicit and requires each Federal agency to prepare Portal (http://www.regulations.gov);
consider flexible regulatory proposals a written statement assessing the effects 2. Visiting the FAA’s Regulations and
and to explain the rationale for their of any Federal mandate in a proposed or Policies Web page at http://
actions to assure that such proposals are final agency rule that may result in an www.faa.gov/regulations_policies/; or
given serious consideration.’’ The RFA expenditure of $100 million or more 3. Accessing the Government Printing
covers a wide-range of small entities, (adjusted annually for inflation with the Office’s Web page at http://
including small businesses, not-for- base year 1995) in any one year by State, www.gpoaccess.gov/fr/index.html.
profit organizations, and small local, and tribal governments, in the You can also get a copy by sending a
governmental jurisdictions. aggregate, or by the private sector; such request to the Federal Aviation
Agencies must perform a review to a mandate is deemed to be a ‘‘significant Administration, Office of Rulemaking,
determine whether a rule will have a regulatory action.’’ The FAA currently ARM–1, 800 Independence Avenue,
significant economic impact on a uses an inflation-adjusted value of SW., Washington, DC 20591, or by
substantial number of small entities. If $143.1 million in lieu of $100 million. calling (202) 267–9680. Make sure to
the agency determines that it will, the Because this final rule only increases identify the amendment number or
agency must prepare a regulatory a civil penalty by $10,000, as required docket number of this rulemaking.
flexibility analysis as described in the by FCPIAA, it does not contain a Anyone is able to search the
RFA. mandate that meets this threshold electronic form of all comments
However, if an agency determines that amount. Therefore, the requirements of received into any of our dockets by the
a rule is not expected to have a Title II of the act do not apply. name of the individual submitting the
significant economic impact on a comment (or signing the comment, if
substantial number of small entities, Executive Order 13132, Federalism submitted on behalf of an association,
section 605(b) of the RFA provides that The FAA has analyzed this final rule business, labor union, etc.). You may
the head of the agency may so certify under the principles and criteria of review DOT’s complete Privacy Act
statement in the Federal Register SOCIAL SECURITY ADMINISTRATION Why are we revising the listings for
published on April 11, 2000 (Volume hearing loss?
65, Number 70; Pages 19477–78) or you 20 CFR Part 404 We are revising the listings for
may visit http://DocketsInfo.dot.gov. hearing loss to update the medical
[Docket No. SSA–2008–0016] criteria, provide more information about
Small Business Regulatory Enforcement
Fairness Act how we evaluate hearing loss, and
RIN 0960–AG20 reflect our adjudicative experience. The
The Small Business Regulatory listings for hearing loss are in the
Enforcement Fairness Act (SBREFA) of Revised Medical Criteria for Evaluating special senses and speech body system,
1996 requires FAA to comply with Hearing Loss which also includes listings for visual
small entity requests for information or AGENCY: Social Security Administration. disorders, disturbances of labyrinthine-
advice about compliance with statutes vestibular function, and loss of speech.
ACTION: Final rules.
and regulations within its jurisdiction. If In the NPRM, we proposed changes only
you are a small entity and you have a SUMMARY: We are revising the criteria in to the listings for hearing loss and their
question regarding this document, you the Listing of Impairments (the listings) accompanying introductory text. We
may contact your local FAA official, or that we use to evaluate claims involving published final rules revising the
the person listed under the FOR FURTHER hearing loss under titles II and XVI of listings for visual disorders in the
INFORMATION CONTACT heading at the the Social Security Act (Act). The Federal Register on November 20, 2006
beginning of the preamble. You can find revisions reflect our adjudicative (71 FR 67037). We intend to separately
out more about SBREFA on the Internet experience, advances in medical publish proposed rules for disturbances
at http://www.faa.gov/ knowledge, treatment, and methods of of labyrinthine-vestibular function and
regulations_policies/rulemaking/ evaluating hearing loss, and public loss of speech.
sbre_act/. comments we received in response to a When will we use these final rules?
List of Subjects in 14 CFR Part 406 Notice of Proposed Rulemaking
We will use these final rules
(NPRM).
Administrative procedure and review, beginning on their effective date. We
DATES: These rules are effective August will continue to use the current listings
Commercial space transportation,
2, 2010. until the date these final rules become
Enforcement, Investigations, Penalties,
FOR FURTHER INFORMATION CONTACT: Tiya effective. We will apply the final rules
Rules of adjudication.
Marshall, Social Insurance Specialist, to new applications filed on or after the
The Amendment Office of Medical Listings Improvement, effective date of the final rules and to
Social Security Administration, 6401 claims that are pending on and after the
■ In consideration of the foregoing, the Security Boulevard, Baltimore, effective date.1
Federal Aviation Administration Maryland 21235–6401, (410) 965–9291.
amends part 406 of Title 14, Code of How long will the rules in the special
For information on eligibility or filing senses and speech body system be in
Federal Regulations as follows: for benefits, call our national toll-free effect?
number, 1–800–772–1213, or TTY 1–
PART 406—INVESTIGATIONS, We are extending the effective date of
800–325–0778, or visit our Internet Web
ENFORCEMENT, AND the special senses and speech body
site, Social Security Online, at http://
ADMINISTRATIVE REVIEW system in parts A and B of the listings
www.socialsecurity.gov.
until 5 years after the effective date of
■ 1. The authority citation for part 406 SUPPLEMENTARY INFORMATION: these final rules, except we intend to
continues to read as follows: revise the Disturbance of labyrinthine-
Electronic Version
Authority: 49 U.S.C. 70101–70121. vestibular function and Loss of speech
The electronic file of this document is listings before then. The rules will
■ 2. Amend § 406.9 by revising available on the date of publication in remain in effect only until that date
paragraph (a) to read as follows: the Federal Register at http:// unless we extend them. We will
www.gpoaccess.gov/fr/index.html. continue to monitor the rules and may
§ 406.9 Civil penalties.
Background revise them before the end of the 5-year
(a) Civil penalty liability. Under 49 period.
U.S.C. 70115(c), a person found by the We are revising and making final the
FAA to have violated a requirement of rules for evaluating hearing loss we Public Comments on the NPRM
the Act, a regulation issued under the proposed in an NPRM we published in In the NPRM, we provided the public
Act, or any term or condition of a the Federal Register on August 13, 2008 with a 60-day comment period, which
license or permit issued or transferred (73 FR 47103). The preamble to the ended on October 14, 2008. We received
under the Act, is liable to the United NPRM discussed the changes from the 17 public comment letters. The
States for a civil penalty of not more current rules and our reasons for comments came from national medical
than $110,000 for each violation, as proposing those changes. To the extent organizations, advocacy groups, a
adjusted for inflation. A separate that we are adopting the proposed rules national group representing Social
violation occurs for each day the as published, we are not repeating that
violation continues. information here. Interested readers may 1 This means that we will use these final rules on
refer to the preamble to the NPRM, and after their effective date in any case in which
* * * * * we make a determination or decision. We expect
available at http://www.regulations.gov. that Federal courts will review our final decisions
Issued in Washington, DC, on May 25, We are making a number of changes using the rules that were in effect at the time we
2010. from the NPRM as a result of public issued the decisions. If a court reverses the
J. Randolph Babbitt, comments. We explain those changes in Commissioner’s final decision and remands a case
Administrator. for further administrative proceedings after the
our summary of the public comments effective date of these final rules, we will apply
[FR Doc. 2010–13218 Filed 6–1–10; 8:45 am] and our responses later in this these final rules to the entire period at issue in the
BILLING CODE 4910–13–P preamble. decision we make after the court’s remand.
Security disability consultants, a audiometric testing within 2 months of Such cases could include the situation
national group representing disability the complete otologic examination to mentioned by one of the commenters in
examiners in the State agencies that establish a medically determinable which there is properly performed
make disability determinations for us, impairment. After that, we do not audiometric testing in a person’s
individual State agencies, and members require a complete otologic examination evidence that is not within 2 months of
of the public. to assess the severity of the hearing loss; an otologic examination. We use the
We provide below summaries of the audiometry is sufficient. Otoscopy is word ‘‘should’’ in these rules to indicate
significant comments that were relevant part of the complete otologic our preference and ‘‘must’’ to indicate an
to this rulemaking and our responses to examination, and we require otoscopy absolute requirement. We prefer the 2-
those comments. We tried to present the before audiometry to determine if there month rule because it ensures the most
commenters’ concerns and suggestions are any conditions that would prevent accurate and reliable findings about the
accurately and completely. valid testing. existence of the impairment.
Some commenters supported the We will not substitute otoscopy In the NPRM, we invited the public to
proposed changes and noted provisions performed by an audiologist for a comment on a proposed change to our
with which they agreed. We appreciate complete otologic examination prior rule that provided that an
those comments, but have not performed by a licensed physician otolaryngologic examination should
summarized or responded to them (medical or osteopathic doctor) to precede audiometric testing. The
below because they do not require a establish a medically determinable proposed rules for adults and children
response. Some commenters also sent us impairment. We also will not use provided that a person could have
comments on subjects that were audiometric testing that was performed audiometric testing either before or after
unrelated to the proposed rules; for without otoscopy to find that a hearing the complete otologic examination to
example, several commenters suggested impairment meets or medically equals a establish a medically determinable
changes to the rules we use to evaluate listing. impairment. Two commenters
claims involving vertigo and speech In revising proposed 2.00B1 and recommended that this audiometric
disorders. As we have already noted, we 102.00B1 in response to these comments testing always precede the complete
intend to publish a separate NPRM for and a comment we summarize below, otologic examination. They indicated
disturbances of labyrinthine-vestibular we realized that our proposal to require that physicians generally need the
function and loss of speech.2 both a complete otologic examination results of audiometric testing to make
and audiometric testing to establish a comprehensive findings about a
Establishing the Existence and Severity medically determinable impairment person’s hearing loss. They believed
of Impairments That Cause Hearing would be unnecessary in some cases. that such a rule would be more efficient
Loss For example, there are some because a physician would likely order
Three commenters thought that our impairments, such as congenital audiometric testing if he or she did not
proposed requirements to establish that abnormalities, that are clearly already have it.
a person has a medically determinable observable by otologic examination. In After considering these comments, we
impairment that causes hearing loss the final rules, therefore, we provide decided to make final the proposed rule
were unclear. The commenters pointed that we ‘‘generally’’ require a complete that allows audiometric testing either
out that we referred to both audiometric otologic examination and audiometry to before or after complete otologic
testing within 2 months of a complete establish that you have a medically examination. We believe this rule will
otologic examination and ‘‘subsequent’’ determinable impairment that causes provide flexibility for our adjudicators
audiometric testing. Another commenter your hearing loss. to establish the existence of a medically
asked whether we would use otoscopy Several commenters recommended determinable impairment as soon as
(a description of the appearance of the that we use audiometric testing practicable. The purpose of the rule is
external ear canals and an evaluation of performed more than 2 months from the only to establish the presence of some
the tympanic membrane) performed by complete otologic examination in medically determinable impairment that
an audiologist to establish a medically determining whether there is a would account for the hearing loss, and
determinable impairment. medically determinable impairment that as we explained in the preamble to the
We agreed with the commenters that causes hearing loss. Some of these NPRM, there are advantages to
the proposed provisions could have commenters recommended alternative audiometric testing before or after the
been clearer and revised and periods. A commenter also asked otologic examination. In addition, we
reorganized proposed 2.00B1 and whether a report of audiometry in a realized that, in some cases, we could
102.00B1 in response to these person’s existing medical evidence (that establish the medically determinable
comments. Proposed (now final) 2.00B1 is, one that we did not purchase by impairment based on the otologic
and 102.00B1 provided information consultative examination (CE)) would examination alone. As we indicated
about two issues regarding evidence be acceptable if there were no recent above, we made a revision in final
under these listings: How we establish otologic examination. 2.00B1 and 102.00B1 to recognize this
We did not adopt these comments possibility.3
a medically determinable impairment
because the proposed (now final) rules
that causes hearing loss and how we Otologic Examinations
already allow use of audiometric testing
establish the severity of that
performed more than 2 months from the A commenter recommended that we
impairment. We generally require both
date of the otologic examination in specify that otolaryngologists certified
a complete otologic examination and
determining whether you have a by the American Board of

2 While we included the sections on vertigo medically determinable impairment that Otolaryngology should perform otologic
associated with disturbances of labyrinthine- causes hearing loss. The rules provide
vestibular function and loss of speech in the NPRM, that the testing ‘‘should’’ be performed 3 The revision is also consistent with the
we indicated that we were not proposing any within 2 months of the complete statement we made in the NPRM that ‘‘[h]aving the
substantive changes. 73 FR at 47104. Although we otologic examination precede the audiometric
are not responding to comments on those sections,
otologic examination to allow our testing can help identify conditions that could
we will consider them as we develop NPRMs for adjudicators to use evidence that is interfere with the audiometric testing.’’ 73 FR
the disorders they address. outside the period in appropriate cases. 47103, 47105 (2008).
examinations. We partially adopted the an audiometric examination might add acceptable medical sources as defined
comment by specifying in final 2.00B1b expense and time to a CE. The in §§ 404.1513(d) and 416.913(d) of our
and 102.00B1b that a licensed physician commenter was especially concerned regulations and Social Security Ruling
(medical or osteopathic doctor) must that, when the otoscopic examination (SSR) 06–3p.4
perform the complete otologic shows cerumen (earwax), we would Another commenter recommended
examination to establish whether a need to ask a physician or audiologist to that we accept the results of audiometric
person has a medically determinable remove it before we could continue with testing conducted solely by clinical
impairment. For our purposes, licensed the audiological testing. In particular, audiologists. We did not adopt this
physicians have the necessary the commenter was concerned about comment because otolaryngologists
education, training, and experience to cerumen that only partially obscures the have the requisite education, training,
perform the otologic examination. view of the tympanic membrane. The and experience to perform and
One commenter recommended that commenter said that this condition does supervise the audiometric testing we
we remove from proposed 2.00B1b and not necessarily equate to invalid require.
102.00B1b the description of the pinnae audiometric testing. We agree that A few commenters questioned our
(the outer, visible parts of the ears) from cerumen can, but does not always, requirement in proposed 2.00B2a and
the requirements for a complete otologic interfere with audiometric testing, and 102.00B2f(i) for audiometric testing in a
examination. The commenter believed we will rely on the person who soundproof booth. Some of these
that the pinnae do not contribute to conducts the test to decide whether to commenters suggested we revise our
hearing disability. We did not adopt the remove cerumen. We will address this rules to require testing in a sound-
comment because abnormalities of the issue in our internal operating treated booth or room. We agreed with
pinnae are associated with a number of instructions. these commenters and made this change
conditions that affect hearing, and such in final 2.00B2a and 102.00B2f(i).
abnormalities may be signs of a Audiometric Testing
One commenter noted that several
medically determinable impairment. One commenter recommended that types of sound are used for audiometric
Abnormalities of the pinnae can also we clarify the provision in proposed testing in a sound field. The commenter
influence how sound waves are directed 2.00B1d and 102.00B1d (final 2.00B1c also noted that air and bone conduction
to the middle ear. and 102.00B1c) that permitted testing is not sound field testing and
Another commenter said that our audiometric testing by a non-audiologist asked us to clarify the type of sound that
description of an otologic examination ‘‘under the supervision of’’ an we require for air and bone conduction
was incomplete. The commenter said otolaryngologist. The commenter testing. The type of sound used for air
that otologists do, and should, examine recommended that we require non- and bone conduction testing is referred
the nasopharynx, nose, oral pharynx, audiologists to conduct testing only to as ‘‘pure tone’’ sound. Our rules
mouth, and neck when they evaluate under ‘‘direct’’ supervision, in require that air and bone conduction
hearing loss. While we agree that accordance with Medicare regulations testing be conducted in accordance with
otologists do examine these areas, we do requiring the physician to be present in the most recently published standards
not include them in these final rules the office suite when the service is being of the American National Standards
because we are describing only findings performed and to assist if necessary. We Institute (ANSI). Those standards
that we need to determine whether a adopted the recommendation. We will describe the type of sound that should
person has a medically determinable provide guidance to our adjudicators on be used. Therefore, we do not believe it
impairment that could cause hearing how to apply the rule in our is necessary to specify the type of sound
loss. A physician does not need to instructions and training. used.
examine the areas suggested by the Two commenters recommended that One commenter asked us to clarify
commenter to establish such an we accept the results of audiometric how we would evaluate tests that report
impairment. testing conducted independently by a vibrotactile (VT) response, rather than
hearing aid specialists—also called a hearing response, at 500 Hertz (Hz)
Otoscopic Examinations Hearing Instrument Specialists (HIS)— during bone conduction testing, or no
Two commenters recommended that in addition to the professionals response at one or more frequencies
we specify who may perform the described in proposed 2.00B1d and during air or bone conduction testing. A
otoscopic examination described in 102.00B1d. We did not adopt this VT response may occur during bone
final 2.00B2b and 102.00B2b. We comment because the educational and conduction testing when the person
adopted the recommendation by stating other qualifications required for does not have an auditory response but
in 2.00B2b and 102.00B2b that the licensure or certification as an HIS are perceives the sensation from the
medical professional described in final less comprehensive than those of oscillator; we consider a VT response to
2.00B1c and 102.00B1c must conduct otolaryngologists and audiologists and be a ‘‘no response.’’ To address this
the audiometric testing. In addition, in can vary from place to place. Therefore, issue, we added guidance in final
response to a comment pointing out that we cannot be assured that all HISs 2.00B2c, 102.00B2c(ii), 102.00B2d(ii),
‘‘otoscopic inspection’’ is the term would have the expertise needed to 102.00B2e(ii), and 102.00B2f(ii). In the
usually used when audiologists conduct independently perform the audiometric final rule, we now clarify that when
otoscopic examinations, we explain in testing we require under these listings. there is no response at one or more
final 2.00B2b and 102.00B2b that our If an HIS conducts the testing under the frequencies during air or bone
term ‘‘otoscopic examination’’ includes direct supervision of an conduction testing, we will use 5 dB
‘‘otoscopic inspection.’’ This addition otolaryngologist, the evidence would be

clarifies that audiologists and other non- acceptable audiometric testing both for 4 SSR 06–3p: Titles II and XVI: Considering
physicians may do the otoscopic establishing a medically determinable Opinions and Other Evidence from Sources Who
examination that we require before impairment and for assessing its Are Not ‘‘Acceptable Medical Sources’’ in Disability
audiometric testing. severity. We may also consider an HIS’ Claims; Considering Decisions on Disability by
Other Governmental and Nongovernmental
One commenter said that the evidence when we assess severity in the Agencies, 71 FR 45593 (2006), also available at:
requirement for an evaluation of the same way that we consider evidence http://www.socialsecurity.gov/OP_Home/rulings/di/
tympanic membrane immediately before from other sources who are not 01/SSR2006–03-di-01.html.
over the limit of the audiometer used for accept either method; however, we word recognition testing score at the
the test to compute the average added text to final 2.00B2e and highest comfortable level of
threshold. 102.00B2f(iv) to clarify this intent. amplification. We did not adopt the
One commenter indicated that our Although word recognition testing comment to refer to testing at 35 to 40
definition of speech reception threshold usually uses recorded material, we do dB above the SRT as ‘‘supra-threshold’’
(SRT) in proposed 2.00B2d and not believe that the method of testing because we prefer to specify our
102.00B2f(iii) was not entirely correct. presentation will affect our ability to criteria for word recognition testing.
The commenter stated that SRT is the determine whether a person has a
minimum dB level required to recognize We received several comments about
listing-level hearing loss. Therefore, we
‘‘spondee words 50 percent of the time,’’ acoustic immittance assessment (AIA),
did not adopt the second comment.
not ‘‘the minimal decibel (dB) level Two commenters recommended that that is, a tympanogram and acoustic
required * * * to recognize a standard we require word recognition testing reflex testing. In the proposed rules, we
list of words.’’ 5 The commenter also conducted with background noise, not required an AIA for children from birth
recommended that we replace the term only in quiet (see final 2.00B2e, to the attainment of age 5. One
‘‘speech reception threshold’’ with 2.00B3b, 102.00B2f(iv), and 102.00B3b). commenter recommended that we
‘‘spondee threshold’’ to ensure These commenters also recommended require an AIA for adults to rule out
standardization of testing material. We that the words be presented at a normal conductive pathology, which is
agreed with the first comment and conversational level. We did not adopt amenable to treatment, and to aid in
revised the definition of SRT in final the comments. We require testing under detecting situations in which a person
2.00B2d and 102.00B2f(iii) accordingly. optimal circumstances (that is, in quiet may be feigning a serious hearing loss.
We also added a parenthetical statement and at a level of amplification that Another commenter questioned our
in final 2.00B2a and 102.00B2f(i) allows us to measure a person’s proposal to require an AIA for children
explaining that SRT is also called maximum ability to discriminate words) because listing 102.10A uses only air
‘‘spondee threshold’’ or ‘‘ST.’’ We did not to ensure that the impairment is of conduction thresholds. A third
change the term SRT because it is the listing-level severity. commenter recommended that we
more common name for this type of One commenter suggested that we require high-frequency tympanometry
testing, and we believe our adjudicators replace the term ‘‘amplification level’’ in for children under age 5 months.
are more likely to see it in the medical proposed 2.00B2e and 102.00B2f(iv)
We did not adopt the comment to
evidence. with ‘‘presentation level.’’ The
One commenter recommended that commenter asked whether we require require an AIA for adults because the
we require certain specific Department that word recognition testing be done at bone conduction criterion in final
of Veterans Affairs’ recordings of 50- the ‘‘phonetically balanced maximum’’ listing 2.10A ensures that there is a
word lists, presented at 70 dB in quiet, (PB Max), which the commenter significant sensorineural component to
for measuring the word recognition believed is equivalent to the ‘‘most the hearing loss. Sensorineural hearing
ability of persons with hearing loss not comfortable level’’ (MCL). Another loss results from permanent damage to
treated with cochlear implantation. commenter recommended that we use the inner ear or to the nerve pathways
Another commenter also recommended the term ‘‘supra-threshold’’ instead of from the inner ear to the brain. Persons
that, for children, the word list should specifying the level of amplification we with the degree of sensorineural hearing
be appropriately normed. We did not require for word recognition testing. loss required in final listing 2.10A do
adopt the first recommendation because We did not adopt the first suggestion not usually obtain significant
there are several appropriate tests because we believe that ‘‘amplification improvement with hearing aids. We also
available to measure a person’s word level’’ describes more precisely the test believe that an AIA is unnecessary to
recognition ability, and we want to parameters we require for word detect deception because the
provide our adjudicators with flexibility recognition testing. With respect to the professionals referenced in final
in obtaining this evidence to determine second comment, we note that PB Max 2.00B1c who may conduct audiometric
disability. We adopted the suggestion to and MCL are not the same. PB Max is testing are trained to detect whether a
provide that word lists for children the hearing level at which the maximum person is feigning hearing loss and to
must be appropriately normed. In the percentage of words is correctly recognize test results that may suggest
NPRM, we said that the lists must be repeated during testing with a list of such deception. We agreed with the
‘‘standardized.’’ We intended this word phonetically balanced monosyllabic second commenter that we do not need
to include the idea that the tests must words, such as ‘‘chew’’ and ‘‘knees.’’ It an AIA to determine disability for
be appropriately normed for age. may not be the listener’s MCL, which is children under age 5 and did not
However, to be clearer, we are adding the hearing level at which speech is include it in final 102.00B2c(i),
the words ‘‘age-appropriate’’ in response most comfortable for the listener. As we 102.00B2d(i), and 102.00B2e(i). We
to this comment. indicate in final 2.00B2e and proposed to require an AIA for these
One commenter asked us to clarify 102.00B2f(iv), the words must be children to identify conditions that
whether the word recognition testing in presented at a level of amplification that would prevent valid audiometric
proposed 2.00B2e and 102.00B2f(iv) will measure a person’s ‘‘maximum testing. However, the otoscopic
should be done using live presentation ability’’ to discriminate words, usually examination we require will detect any
or recorded material. Another 35 to 40 dB above the SRT. This level conditions revealed by AIA. Since we
commenter suggested we require testing of amplification is often a person’s PB removed the requirement for an AIA for
with recorded material, unless there is Max; when it is not, it is still sufficient children under age 5 we are not
documentation indicating why live for us to determine whether there is adopting the third comment.
presentation was necessary. In the listing-level hearing loss. However, in
response to this comment, we clarified Two commenters recommended that
proposed rules, we did not specify the
in final 2.00B2e and 102.00B2f(iii) that, we require audiologists who conduct
method of presentation because we will
if a person cannot be tested at 35 to 40 audiometric testing for us to complete
5 Spondee words, such as ‘‘baseball’’ and dB above his or her SRT, the person hearing checklists recommended in a
‘‘airplane,’’ have equal stress on each syllable. who performs the test should report the 2005 National Research Council report
(‘‘NRC report’’).6 The commenters said behavioral testing. This commenter also may have auditory neuropathy (that is,
the checklists would ensure the quality recommended that we should use all normal OAE but no response on
of the data collected and provide useful information gathered during testing to Auditory Brainstem Response (ABR)
information for evaluating disability at evaluate functioning if the impairment testing), we should presume the child
later steps in the sequential evaluation does not meet or medically equal a disabled until it is possible to perform
process. We considered these checklists listing. age-appropriate behavioral testing,
at the time we developed the proposed When we evaluated these comments, generally by age 6 months. We did not
rules and determined we did not need we determined that our guidance in adopt these comments. Test results
them. We believe we have adequately proposed 102.00B2a was unclear and showing normal OAE, but no response
specified in these final rules the contrary to our intent because it implied on ABR testing are uncommon and
information we need to evaluate that a hearing impairment could meet nearly always involve children who
whether a person’s hearing impairment listing 102.10 without physiological or have other impairments that we would
meets or medically equals one of the behavioral testing. The proposed find disabling under the criteria of a
hearing listings. Finally, we also specify guidance was not for determining listing in another body system. We will
qualifications for audiologists that will whether hearing loss met a listing; we evaluate the small number of children
ensure the quality of the data they intended it to apply only to evaluations who do not have such other
collect. of medical and functional equivalence. impairments on an individual basis. If
To clarify that listing 102.10 requires we cannot make a fully favorable
Issues Specific to Audiometric Testing physiologic testing, we removed the
of Children determination in those cases, we will
word ‘‘generally’’ from proposed defer them until the child is age 6
One commenter recommended that 102.00B2a and removed the proposed months and can participate in
we should strongly prefer audiometric guidance indicating that we will behavioral testing.
testing by an experienced pediatric evaluate a person’s hearing loss based One commenter suggested that it
audiologist when evaluating hearing on other evidence in the case record. would be helpful to list some of the
loss in children. While we generally We also removed unnecessary and other types of physiologic testing—such
agree with the comment, we did not potentially confusing language in
as Brainstem Auditory Evoked Response
make any changes in the final rules 102.00B2a. In the proposed rules, we
(BAER)—in addition to ABR testing. We
because we do not believe it is said that we would use other evidence
did not adopt the recommendation. We
necessary to include this guidance in when physiologic testing had not been
cite only the ABR because, as the
the regulations. We have a general done or we could not obtain the results
commenter noted, ABR testing is the
preference for obtaining evidence from of testing that had been done. However,
most commonly used physiologic test
appropriate specialists in childhood there was a third possibility: We have
cases, and we believe that our internal and is the one that adjudicators are most
the results of physiologic testing, but we
operating instructions are sufficient for likely to see.
need new testing. Since our intent was
this purpose.7 only to say that we would not purchase One commenter recommended that
One commenter recommended that physiologic testing, we simplified the we determine the pure tone air and bone
we reference the American Academy of rule to say just that. This rule applies conduction thresholds in children by
Audiology’s pediatric protocols for regardless of whether such testing testing at 3000 Hz in addition to 500,
audiological evaluation of children. We requires sedation. 1000, 2000, and 4000 Hz. We did not
did not adopt the comment because we We did not adopt the comment that adopt the comment because, as we
believe the audiometric testing we recommended we use all information explained in the NPRM,9 our
require in these final rules is sufficient gathered during testing to evaluate adjudicative experience has shown that
for evaluating hearing loss in children. functioning if the impairment does not testing is often not done at 3000 Hz.
Two commenters wrote about our meet or medically equal a listing. We Moreover, several commenters on the
statement in proposed 102.00B2a that already use all of the relevant April 13, 2005, Advance Notice of
we would not purchase physiologic information we gather in connection Proposed Rulemaking 10 recommended
hearing tests for children and would with testing when we determine that we remove the current requirement
instead consider ‘‘other evidence’’ when whether a child’s impairment(s) to test at 3000 Hz. We agreed with those
such testing was not done or when it functionally equals the listings. We have commenters and believe the findings we
was done, we could not obtain the other rules that explain how we require in these final rules are adequate
results. One of these commenters consider medical and other evidence for our purposes.
requested clarification of what ‘‘other when we evaluate a child’s functioning. One commenter noted that we
evidence’’ we would consider and asked See §§ 416.924a and 416.926a, and SSR provided in proposed 102.00B2g that we
whether we may purchase physiologic 09–2p.8 can consider normal results from
testing that does not require sedation. One commenter recommended that hearing screening tests, such as OAE, to
The other commenter stated that we require otoacoustic emissions (OAE) determine that a child’s hearing loss is
physiologic testing would be necessary testing in addition to the physiologic not ‘‘severe’’ when these test results are
for infants, some toddlers, and some testing we required in proposed consistent with the other evidence in
children with certain developmental 102.00B2c(i) for children from birth to the case record. The commenter asked
disorders that preclude participation in the attainment of age 6 months to whether we could use normal results
identify children with auditory from a pure tone screen by a speech-
6 National Research Council (NRC): Committee on

dyssynchrony or auditory neuropathy. language pathologist in the same way.
Disability Determination for Individuals with Another commenter pointed out that,
Hearing Impairments. (2005). Hearing Loss:
We can use such evidence in the same
Determining Eligibility for Social Security Benefits. when testing indicates that an infant way as other screening tests. In response
Action Recommendation 4–5. (Complete citation at to this comment, we revised the
73 FR at 47110.) 8 SSR 09–2p: Title XVI: Determining Childhood
guidance in final 102.00B2g to include
7 See, for example, Program Operations Manual Disability—Documenting a Child’s Impairment-
Systems (POMS) DI 25205.015, available at: Related Limitations, 74 FR 7625 (2009), also
9 73 FR 47107 (2008).
https://secure.ssa.gov/apps10/poms.nsf/lnx/ available at: http://www.socialsecurity.gov/
0425205015!opendocument. OP_Home/rulings/ssi/02/SSR2009–02-ssi-02.html. 10 70 FR 19353 (2005).
pure tone testing as a type of screening meets the listing. We also clarified that Another commenter suggested that we
test. we require an explanation of the consider a person’s contact with treating
discrepancy, by using ‘‘must’’ in the final sources, other health care professionals,
Validity of Audiometric Testing
rule instead of the proposed ‘‘should.’’ and other third parties, such as past
One commenter commented on our Two commenters recommended that employers, to see whether the person is
proposed requirements for otoscopic we require a check of the cochlear able to communicate with them either
examination together with pure tone implant before testing to ensure that it directly or through the use of an
average and SRT testing to document is turned on and functioning properly. interpreter. We did not add this
the validity of audiometry and One of these commenters also guidance. In some cases, the persons
suggested that we instead require only referenced by the commenter are
recommended that we require
a statement of reliability, validity, or already included in the clause ‘‘other
corroborating behavioral evidence that
inter-test reliability. The commenter persons who speak the language in
correlates with the Hearing in Noise
believed that such a statement would which you are the most fluent’’ in final
Test (HINT) results to ensure the
also cover issues such as patient 2.00B4 and 102.00B4. In other cases, we
validity and reliability of the testing. In
cooperation and the attention of a child. do not need to consider the person’s
the NPRM, we said that word
We partially adopted the comment: ability to communicate with such
We do not consider test results in recognition testing ‘‘must be conducted
in quiet in a sound field with your persons when we evaluate word
isolation. Therefore, in response to this recognition ability under the final
comment and another comment we implant adjusted to your normal
settings.’’ 11 We intended this listings.
describe later, we added a sentence in A third commenter approved of our
final 2.00B1a and 102.00B1a stating that requirement to include verification that
guidance in proposed 2.00B4 and
we will consider your test scores the person’s cochlear implant is turned
102.00B4 regarding word recognition
together with any other relevant on and functioning properly. However,
testing for a person who is not fluent in
information we have about your to be clearer, we added in final 2.00B3b
English, but thought it might be difficult
hearing, including information from and 102.003B3b a requirement that the
to obtain the testing we need. We
outside of the test setting. This is our person’s implant must be functioning
understand this concern and to address
basic policy for considering any test properly. In response to the second
it include the guidance in final 2.00B4
results. comment and another comment we have
and 102.00B4 concerning medical
In final 2.00B2b and 102.00B2b, we already described, we added sentences
equivalence.
provide that the person who performs in final 2.00B1a and 102.00B1a Another commenter recommended
the audiometry should report on any providing that we consider test results that we include physiologic testing,
factors in addition to the factors together with all relevant evidence in such as frequency-specific evoked
observable on otoscopy that can affect the case record. potentials, for persons who do not speak
the interpretation of the test results. As Issues Regarding Audiometric Testing of English. We did not adopt this
this commenter suggested, we used Persons Who Are Not Fluent in English suggestion because this testing does not
patient cooperation as an example in the test word recognition ability.
adult rule and a child’s ability to Several commenters responded to our One commenter noted that, while the
maintain attention as an example in the request in the NPRM for suggestions HINT is available in 12 languages, our
childhood rule. It is common practice to about other methods we could use to requirement that a person who performs
report such observations, so the evaluate the word recognition ability of audiometric testing ‘‘must be fluent’’ in
provisions in the final rules will not be persons who are not fluent in English.12 the claimant’s native language would
an additional burden on our CE One commenter noted that our proposed create a problem for obtaining the test.
providers. We also expect to find such rules did not recognize recorded speech As we explained above, the person
observations in existing reports of testing in foreign languages. As we have administering the test ‘‘should’’ be fluent
audiometric testing. already noted in response to an earlier in the language. We do not have an
We did not adopt the general comment, we accept word recognition absolute rule that the person who
statement the commenter suggested, testing using recorded material, and that administers the test must be fluent in
because general statements about includes recorded material in a foreign the language, although that is our
reliability and validity are too vague to language. While considering this preference. We also provide that the
assure us that the results of audiometric comment, however, we noticed that we inability to measure a person’s word
testing are reliable and valid. inadvertently omitted requirements for recognition ability means only that his
One commenter asked whether word recognition testing when a person or her hearing impairment cannot meet
adjudicators must reject the results of all is not fluent in English from the final listing 2.11B or 102.11B. If a
audiometric testing when the person’s proposed rules, although we included person with a severe impairment(s) has
SRT is not within 10 dB of the average the requirements in the preamble to the difficulty understanding words in the
pure tone air conduction thresholds at NPRM.13 We have included the omitted language in which he or she is most
500, 1000, and 2000 Hz. In proposed text in the final rules. As in the fluent and we are unable to measure his
2.00B2d and 102.00B2f(iii), we preamble to the NPRM, the final rules or her word recognition ability, we will
indicated only that the reason for such explain that testing of a person who is consider whether the degree of
a discrepancy should be documented. not fluent in English should be difficulty (either alone or in
Another commenter suggested that we conducted using an appropriate word combination with another
highlight or strengthen the guidance in list for the language in which the person impairment(s)) medically equals final
these sections. In response to these is most fluent, and the person listing 2.11B or 102.11B. If not, we
comments, we revised the guidance in conducting the testing should be fluent consider the person’s difficulty
final 2.00B2d and 102.00B2f(iii) to in the language used for the test. understanding words when we assess
explain that, if we cannot determine a residual functional capacity for adults
medical basis for the discrepancy we 11 73 FR at 47111. or functional equivalence for children.
will not use the results of the testing to 12 73 FR at 47106. One commenter suggested that we
determine that a person’s hearing loss 13 73 FR at 47105–06. should acknowledge in the childhood
listings that the ‘‘speech education and impairment(s) is disabling based on method for testing children from age 6
articulation’’ of children in bilingual or medical equivalence or based on an months to the attainment of age 2, and
multilingual environments differs from individualized assessment when we we believe that—even as an estimate—
those of children in monolingual evaluate an adult’s residual functional an average air conduction threshold of
environments. The commenter believed capacity, age, education, and work 50 dB or greater in the better ear does
that most speech tests conducted for experience, or functional equivalence in indicate listing-level severity in these
children who are bilingual or children. young children.
multilingual would be invalid. We did One commenter requested that we One commenter noted an
not adopt this comment. We agree that include listing criteria for adults with inconsistency between our definition of
children who are bilingual or precipitous hearing loss who have an ‘‘marked’’ limitation in speech in
multilingual do not always develop in impairment(s) that does not meet the proposed 102.00B5a and our definition
the same way as children who are pure tone criteria in listing 2.10A but of the term in SSR 98–1p.14 The
monolingual, but we do not agree that who have significant limitations in the commenter recommended that we use
all speech testing of such children is ability to discriminate words. The unintelligibility on the first attempt 67
invalid. Moreover, we do not rely on commenter also requested that we percent (two-thirds) of the time as the
test scores alone, but consider all of the include criteria for children over age 5 threshold for a marked limitation
relevant evidence when we evaluate a who have an unaided hearing threshold instead of 60 percent. We adopted the
child’s functioning. See of 50 dB in the better ear and normal comment by changing the rule to ‘‘at
§ 416.924a(a)(1)(ii). speech and language development but least 50 percent (half) of the time but no
do not have the ability to listen more than 67 percent (two-thirds) of the
Listing Criteria for Hearing Loss Not accurately in distant and noise- time.’’ This is the same range that we
Treated With Cochlear Implantation challenged situations. The commenter use in our definitions of ‘‘marked’’ in
We received several comments about suggested we use the HINT or HINT–C SSR 98–1p and other rules, that is, one-
the criteria in proposed listings 2.10 and for children to evaluate these persons. half to two-thirds.
102.10. One commenter said that we We did not adopt these comments One commenter recommended that
should change the criteria in listings because we had already proposed we consider children with ‘‘marked
2.10B and 102.10B2 from a word criteria for determining when a mental retardation’’ who cannot be
recognition score of 40 percent or less limitation in word recognition ability is evaluated for speech or language to be
in the better ear to a score of 70 percent of listing-level severity in listings 2.10B disabled when their impairment meets
or less. Another commenter noted that and 102.10B2. The final rules, which are the hearing criterion alone. We were not
our proposed listings did not address the same as the proposed rules, require certain what the commenter intended by
the variability in word recognition results from a phonetically balanced ‘‘marked mental retardation’’ because the
scores, that is, that a score higher than monosyllabic word list for persons who American Psychiatric Association (APA)
40 percent might not be statistically do not have cochlear implants, and World Health Organization (WHO)
different from a score of 40 percent or regardless of the type or level of their currently use the terms ‘‘mild,’’
less. Some commenters also hearing loss. We specify this type of test ‘‘moderate,’’ ‘‘severe,’’ and ‘‘profound’’ to
recommended various changes to listing because it is the one most often used in describe the levels of the disorder.15 We
102.10A. They recommended that we: clinical practice. assume that the commenter meant at
• Use the average air conduction One commenter recommended that least ‘‘moderate’’ mental retardation,
threshold criteria in Table 7–2 of the we consider first-time hearing aid users which in the APA’s definition is mental
NRC report; under a disability for 1 year because retardation generally with an IQ of 35–
• Use the speech and language they may need a period of rehabilitation 55; the WHO’s is similar, with an IQ of
criteria in Tables 7–2 and 7–3 of the and training to use the aid effectively. 35–49. In either case, the mental
NRC report; This commenter also recommended a 1- retardation by itself meets listing
• Change the criterion for children year period of disability for persons 112.05C in the mental disorders listings,
from birth to age 5 in proposed listing with sudden hearing loss, rapidly and depending on the facts of the case,
102.10A to 25–30 dB, and use the same deteriorating hearing, or fluctuating may meet listing 112.05B. It is not
criterion for children ages 5–12; and hearing because they may need time to necessary for a child to also have
• Use an unaided air conduction adjust to the challenges of hearing loss to qualify under either of
threshold of 50 dB for children ages 12– communication. We did not adopt these those listings.
18. recommendations because some persons
We did not adopt any of these with the conditions described by the Listing Criteria for Hearing Loss Treated
suggestions because we believe they commenter will not have impairments With Cochlear Implantation
would require us to find some adults that meet our definition of disability, We received several comments about
and children who do not have listing- including the 12-month duration our proposal to find disability for 1 year
level impairments disabled under the requirement.
listings. We set the levels of hearing loss One commenter noted that visual 14 SSR 98–1p: ‘‘Policy Interpretation Ruling: Title
in these final rules for adults and reinforcement audiometry (VRA), which XVI: Determining Medical Equivalence in
Childhood Disability Claims When a Child Has
children at levels that reflect very we indicate is the usual method of Marked Limitations in Cognition and Speech,’’ 63
serious hearing loss; we use the listings testing for children from age 6 months FR 15248 (1998), also available at: http://
only to deem persons disabled without to the attainment of age 2, is only an www.socialsecurity.gov/OP_Home/rulings/ssi/02/
considering any other factors that may estimate of the hearing threshold. The SSR98-01-ssi-02.html.
15 American Psychiatric Association, Diagnostic
contribute to their inability to work or commenter recommended that we raise and Statistical Manual of Mental Disorders, Fourth
to function age-appropriately in the case the average air conduction threshold in Edition, Text Revision (DSM–IV–TR). Washington,
of children. It is important to remember, proposed listing 102.10A to ensure that DC (2000); World Health Organization, Division of
however, that we do not deny benefits children in this age range are truly Mental Health and Substance Abuse, ICD–10 Guide
for Mental Retardation, Geneva (1996), available at:
to anyone solely because his or her disabled. While we acknowledge that http://www.who.int/mental_health/media/en/
impairment(s) does not meet a listing. VRA provides only an estimate of 69.pdf. See also: http://apps.who.int/classifications/
We may still find that a person’s hearing loss, it is the most reliable apps/icd/icd10online/.
following cochlear implantation under Two commenters were concerned impairment(s) medically equals a listing
listing 2.11A and, for some children, about our requirement in proposed or to assess residual functional capacity
listing 102.11A.16 The commenters said listings 2.11B and 102.11B that we use in adults or functional equivalence in
that the 1-year period was arbitrary and the HINT or HINT–C to evaluate a children. With respect to the age and
that it may be insufficient because it person’s hearing loss after cochlear literacy issues, we can use versions of
does not account for variation in implantation. The commenters the HINT that have been normed for
treatment outcomes or allow for indicated that we would have difficulty children as young as age 6 to test
maximal improvement. The commenters obtaining a HINT or HINT–C because children between age 5 and 6 and, when
recommended that we extend the period most audiologists do not have the test. appropriate, to test adults with literacy
by various amounts of time ranging from One commenter was concerned that problems.
18 months to 3 years. Another residents of rural areas might be One commenter believed that we
commenter suggested that we provide disadvantaged because these tests are should use the same word recognition
the option of extending the period of available primarily at medical centers tests and test-score criteria to evaluate
disability past 1 year as necessary, that perform cochlear implants. The hearing loss in persons who have
particularly for persons who also have second commenter, who acknowledged cochlear implants as we use to evaluate
vision impairments and may require a that the HINT is the accepted standard hearing loss in persons who have
longer period of adjustment because of for assessing hearing outcome after hearing aids. We did not adopt the
their multiple impairments. cochlear implantation, indicated that comment because the final listings
We did not adopt these comments. the original CD version of this test was reflect the way that persons are
noted to have limitations and has been ordinarily tested. Persons who do not
While some persons will still have
replaced with computerized software have cochlear implants are ordinarily
listing-level impairments 1 year after
versions (such as the HINT for Windows tested with phonetically balanced
implantation, many will have improved,
so we must reexamine their status to see and the HINT®Pro) that contain monosyllabic word lists. The HINT is
improvements and enhancements. The the accepted test for assessing persons
whether they remain disabled. Our rule
commenter asked what version of the with cochlear implants. The HINT is a
is not arbitrary: most therapy programs
HINT we would accept. The commenter sentence test, and persons generally
following cochlear implantation involve
further noted that literature from the have higher word recognition scores
a period of rehabilitation and training
manufacturer of the HINT®Pro indicates when tested with a sentence test
for about 1 year.
that this test is normed for anyone who because sentences provide context for
Moreover, the 1-year rule does not reads at a first grade level and for the words used. Therefore, we must
mean that disability automatically ends children as young as age 6. The require a higher word recognition score
after 1 year. Under the Act and our commenter asked whether this test for cochlear implant users.
regulations, we generally cannot find could also be used for children between
that a person’s disability has ended Terminology Issues
the ages of 5 and 6 and for adults who
unless his or her impairment has have literacy problems. The commenter One commenter recommended that
medically improved and the person is also stated that other speech-in-noise we use the term ‘‘audiometric
no longer disabled.17 After 1 year, we tests are used more frequently and asked evaluation’’ rather than ‘‘audiometric
must consider whether the whether we would use the results of testing’’ throughout these final rules to
impairment(s) is disabling under the those other tests. reflect the full scope of the audiologist’s
criteria in listing 2.11B or 102.11B, or if We do not share the commenters’ identification and assessment of hearing
not, under other listings or our other concerns about the availability of the disorders. We did not adopt the
disability criteria. HINT or HINT–C. As one of the comment. While we recognize that the
Two commenters sent us questions commenters noted, the HINT is the scope of an audiologist’s practice is not
about various adjudication scenarios accepted standard for assessing hearing limited to audiometric testing, the term
involving cochlear implants. With one outcome after cochlear implantation, ‘‘audiometric testing’’ describes the type
exception, we did not add more detailed and we believe this testing is likely to of evidence we require from
guidance to the rules to address these be in the evidence we obtain from a audiologists under these listings.
situations because they are uncommon person’s medical sources. If not, or if we Two commenters recommended that
and we can address them in training need more recent testing, we believe we consistently use the abbreviation dB
and other instructions. We did clarify that in most instances we will be able HL (decibel hearing level) throughout
that we count the 1-year period for to purchase it from these sources or the final rules wherever we used the
which we presume disability from the from audiologists who do have the abbreviation dB (decibel) in the
date of the initial implantation HINT or HINT–C. We acknowledge proposed rules. We did not adopt the
procedure when a person has had more there may be a few cases in which we recommendation because, in these final
than one implant. This rule will apply will not be able to get testing for a rules, the ‘‘dB HL’’ designation is
regardless of whether the person had an resident of a rural area. In those cases, relevant only to word recognition
implant in the other ear or replacement we will use other evidence to determine testing for persons with cochlear
of the initial implant. See final 2.00B3a whether the person is disabled. implants. The sound used to test
and 102.00B3a and final listings 2.11 In response to the concerns raised by persons with cochlear implants can be
and 102.11. the second commenter, we are delivered by two methods, referred to as
providing in final 2.00B3b and ‘‘HL’’ and ‘‘SPL’’ (sound pressure level).
16 Like the proposed rule, final listing 102.11A

102.00B3b that we will use ‘‘any Both of these methods are expressed in
provides for a finding of disability after cochlear version’’ of the HINT or, for children, dB, but a specific dB HL is not the same
implantation until age 5 or for 1 year after any age-appropriate version of the HINT level of loudness as the same dB SPL.
implantation ‘‘whichever is later.’’ We will find that or HINT–C. We will use results only To ensure that we use a consistent
some children are disabled under this listing for from the HINT or HINT–C to determine standard to evaluate every person with
more than 1 year.
17 See sections 223(f) and 1614(a)(4) of the Act, that an impairment meets one of the a cochlear implant, we use the
and §§ 404.1594, 416.994, and 416.994a of our final listings. We can use results from abbreviation ‘‘dB HL’’ only in final
regulations. other tests to determine whether the 2.00B3b and 102.00B3b.
Hearing Loss in Combination With Therefore, we believe that it is the requirements for a significant
Another Impairment(s) appropriate to eliminate the regulatory action under Executive Order
One commenter wrote to us about requirement for aided testing and that it 12866 and were subject to OMB review.
persons with hearing loss together with is not necessary to add functional
Regulatory Flexibility Act
other medical conditions, such as visual criteria to the listings for the evaluation
of persons with listing-level hearing loss We certify that these final rules have
or cognitive disorders, that compromise no significant economic impact on a
who have individualized hearing aids.
their ability to compensate for their substantial number of small entities
hearing loss. The commenter said that Need for Listings for Hearing Loss because they affect only individuals.
some of these persons have greater Citing testimony from our 2005 policy Therefore, a regulatory flexibility
difficulty functioning than persons with conference regarding the number of analysis was not required under the
worse hearing loss but no other persons with deafness who work, one Regulatory Flexibility Act, as amended.
impairments. The commenter believed commenter believed that we should not
that such persons may not be disabled Paperwork Reduction Act
presume that all persons whose hearing
under our listings, but would still have impairments meet the criteria in these This rule does not create any new or
difficulty responding to the listings are disabled. The commenter affect any existing collections, and
communication challenges of daily indicated that we should document that therefore, does not require Office of
living, and that we should consider the proposed rules correctly identify Management and Budget approval
them disabled. This commenter was persons who meet the definition of under the Paperwork Reduction Act.
also concerned that some persons with disability in the Act and our regulations. (Catalog of Federal Domestic Assistance
hearing loss whose impairments do not When we developed our proposed rules Program Nos. 96.001, Social Security-
meet the criteria of the final listings may for evaluating claims involving hearing Disability Insurance; 96.002, Social Security-
have difficulty functioning and should loss, we consulted with some of the Retirement Insurance; 96.004, Social
also be considered disabled. most renowned experts in the field of Security-Survivors Insurance; and 96.006,
In these final rules, we include hearing disorders. We also received Supplemental Security Income)
revisions only to our listings for hearing comments from experts who supported List of Subjects in 20 CFR Part 404
loss. We have other listings and other our proposed rules. Based on this
rules that we use to find many persons Administrative practice and
information, we believe it is appropriate procedure, Blind, Disability benefits,
disabled, including persons like those to presume disability in persons whose
described by the commenter. In Old-Age, Survivors, and Disability
hearing impairments meet the criteria in
addition, our regulations require us to Insurance, Reporting and recordkeeping
these final rules. In addition, the
consider the combined impact of requirements, Social Security.
testimony from our policy conference
multiple impairments throughout the regarding persons with deafness who Michael J. Astrue,
disability determination process. See work did not fully address the issue of Commissioner of Social Security.
§§ 404.1523, 416.923, and 416.924. work independence (for example, ■ For the reasons set out in the
Some persons with a combination of special accommodations) and other preamble, we amend appendix 1 to
hearing loss and other impairments will factors (such as levels of earnings); subpart P of part 404 of chapter III of
have impairments that meet or therefore, the testimony was not title 20 of the Code of Federal
medically equal listings in other body specifically relevant to the issue in this Regulations as set forth below:
systems. Others may be found disabled comment. Moreover, when persons with
at a later step of the sequential listing-level hearing loss work at the PART 404—FEDERAL OLD-AGE,
evaluation process. substantial gainful activity level, we SURVIVORS AND DISABILITY
find them not disabled at the first step INSURANCE (1950– )
Accounting for Improvement With
of the sequential evaluation process.
Hearing Aids ■ 1. The authority citation for subpart P
While most commenters agreed with Other Changes From the NPRM of part 404 continues to read as follows:
our proposal to remove the requirement We made a number of nonsubstantive, Authority: Secs. 202, 205(a), (b), and (d)–
for testing with hearing aids, one editorial corrections and changes in the (h), 216(i), 221(a) and (i), 222(c), 223, 225,
commenter believed that we should not final rules from the language of the and 702(a)(5) of the Social Security Act (42
determine disability without accounting NPRM, such as changing some U.S.C. 402, 405(a), (b), and (d)–(h), 416(i),
sentences from the passive into the 421(a) and (i), 422(c), 423, 425, and
for any improvement in functioning that
active voice. 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110
a person may derive from the use of Stat. 2105, 2189; sec. 202, Pub. L. 108–203,
such aids. Another commenter What is our authority to make rules and 118 Stat. 509 (42 U.S.C. 902 note).
suggested that we include some set procedures for determining whether
functional criteria in the listings to Appendix 1 to Subpart P of Part 404—
a person is disabled under our statutory [Amended]
account for persons who have definition?
individualized hearing aids that ■ 2. Amend appendix 1 to subpart P of
improve their functioning. Under the Act, we have full power
and authority to make rules and part 404 as follows:
As we explained in the NPRM,18 we ■ a. Revise item 3 of the introductory
determined that persons with the level regulations and to establish necessary
text before part A of appendix 1.
of hearing loss specified in the listings and appropriate procedures to carry out ■ b. Revise section 2.00B of part A of
do not usually obtain significant such provisions. Sections 205(a), appendix 1.

improvement in their ability to hear and 702(a)(5), and 1631(d)(1). ■ c. Redesignate section 2.00C of part A
communicate with the use of hearing Regulatory Procedures of appendix 1 as section 2.00E.
aids. In other words, the severity criteria ■ d. Redesignate section 2.00B2 of part
we provide in the final listings make Executive Order 12866 A of appendix 1 as section 2.00C, revise
testing with a hearing aid unnecessary. We have consulted with the Office of the heading, and designate the
Management and Budget (OMB) and undesignated paragraphs as sections
18 73 FR 47106 (2008). determined that these final rules meet 2.00C1, 2.00C2, and 2.00C3.
■ e. Redesignate section 2.00B3 of part 2. What audiometric testing do we need when 3. What audiometric testing do we need when
A of appendix 1 as section 2.00D. you do not have a cochlear implant? you have a cochlear implant?
■ f. Remove listing 2.08 of part A of a. We generally need pure tone air a. If you have a cochlear implant, we will
appendix 1. conduction and bone conduction testing, consider you to be disabled until 1 year after
■ g. Add listings 2.10 and 2.11 to part speech reception threshold (SRT) testing initial implantation.
(also referred to as ‘‘spondee threshold’’ or b. After that period, we need word
A of appendix 1.
‘‘ST’’ testing), and word recognition testing recognition testing performed with any
■ h. Revise section 102.00B of part B of version of the Hearing in Noise Test (HINT)
(also referred to as ‘‘word discrimination’’ or
appendix 1. ‘‘speech discrimination’’ testing). This testing to determine whether your impairment meets
■ i. Remove listing 102.08 of part B of must be conducted in a sound-treated booth 2.11B. This testing must be conducted in
appendix 1. or room and must be in accordance with the quiet in a sound field. Your implant must be
■ j. Add listings 102.10 and 102.11 to most recently published standards of the functioning properly and adjusted to your
part B of appendix 1. American National Standards Institute normal settings. The sentences should be
(ANSI). Each ear must be tested separately. presented at 60 dB HL (Hearing Level) and
The revised text is set forth as follows: without any visual cues.
b. You must not wear hearing aids during
Appendix 1 to Subpart P of Part 404— the testing. Additionally, a person described 4. How do we evaluate your word recognition
Listing of Impairments in 2.00B1c must perform an otoscopic ability if you are not fluent in English?
examination immediately before the
* * * * * audiometric testing. (An otoscopic
If you are not fluent in English, you should
3. Special Senses and Speech (2.00 and have word recognition testing using an
examination provides a description of the
102.00): August 3, 2015. appropriate word list for the language in
appearance of your external ear canals and an
* * * * * which you are most fluent. The person
evaluation of the tympanic membranes. In
conducting the test should be fluent in the
Part A these rules, we use the term to include language used for the test. If there is no
otoscopic examinations performed by appropriate word list or no person who is
* * * * * physicians and otoscopic inspections fluent in the language and qualified to
2.00 SPECIAL SENSES AND SPEECH performed by audiologists and others.) The perform the test, it may not be possible to
otoscopic examination must show that there measure your word recognition ability. If
* * * * *
are no conditions that would prevent valid your word recognition ability cannot be
B. How do we evaluate hearing loss? audiometric testing, such as fluid in the ear, measured, your hearing loss cannot meet
ear infection, or obstruction in an ear canal. 2.10B or 2.11B. Instead, we will consider the
1. What evidence do we need?
The person performing the test should also facts of your case to determine whether you
a. We need evidence showing that you report on any other factors, such as your have difficulty understanding words in the
have a medically determinable impairment cooperation with the test, that can affect the language in which you are most fluent, and
that causes your hearing loss and interpretation of the test results. if so, whether that degree of difficulty
audiometric measurements of the severity of c. To determine whether your hearing loss medically equals 2.10B or 2.11B. For
your hearing loss. We generally require both meets the air and bone conduction criteria in example, we will consider how you interact
a complete otologic examination and 2.10A, we will average your air and bone with family members, interpreters, and other
audiometric testing to establish that you have conduction hearing thresholds at 500, 1000, persons who speak the language in which
a medically determinable impairment that and 2000 Hertz (Hz). If you do not have a you are most fluent.
causes your hearing loss. You should have response at a particular frequency, we will
this audiometric testing within 2 months of use a threshold of 5 decibels (dB) over the C. How do we evaluate vertigo associated
the complete otologic examination. Once we with disturbances of labyrinthine-vestibular
limit of the audiometer.
have evidence that you have a medically function, including Meniere’s disease?
d. The SRT is the minimum dB level
determinable impairment, we can use the * * * * *
required for you to recognize 50 percent of
results of later audiometric testing to assess
the words on a standard list of spondee 2.01 Category of Impairments, Special
the severity of your hearing loss without
words. (Spondee words are two-syllable Senses and Speech
another complete otologic examination. We
words that have equal stress on each
will consider your test scores together with * * * * *
any other relevant information we have about syllable.) The SRT is usually within 10 dB of
the average pure tone air conduction hearing 2.10 Hearing Loss Not Treated With
your hearing, including information from Cochlear Implantation
outside of the test setting. thresholds at 500, 1000, and 2000 Hz. If the
b. The complete otologic examination must SRT is not within 10 dB of the average pure A. An average air conduction hearing
be performed by a licensed physician tone air conduction threshold, the reason for threshold of 90 decibels or greater in the
(medical or osteopathic doctor). It must the discrepancy must be documented. If we better ear and an average bone conduction
include your medical history, your cannot determine that there is a medical hearing threshold of 60 decibels or greater in
description of how your hearing loss affects basis for the discrepancy, we will not use the the better ear (see 2.00B2c).
you, and the physician’s description of the results of the testing to determine whether OR
appearance of the external ears (pinnae and your hearing loss meets a listing. B. A word recognition score of 40 percent
external ear canals), evaluation of the e. Word recognition testing determines or less in the better ear determined using a
tympanic membranes, and assessment of any your ability to recognize a standardized list standardized list of phonetically balanced
middle ear abnormalities. of phonetically balanced monosyllabic words monosyllabic words (see 2.00B2e).
c. Audiometric testing must be performed in the absence of any visual cues. This testing 2.11 Hearing Loss Treated With Cochlear
by, or under the direct supervision of, an must be performed in quiet. The list may be Implantation
otolaryngologist or by an audiologist recorded or presented live, but in either case
A. Consider under a disability for 1 year
qualified to perform such tests. We consider the words should be presented at a level of
after initial implantation.
an audiologist to be qualified if he or she is amplification that will measure your
OR
currently and fully licensed or registered as maximum ability to discriminate words,

a clinical audiologist by the State or U.S. usually 35 to 40 dB above your SRT. B. If more than 1 year after initial
territory in which he or she practices. If no However, the amplification level used in the implantation, a word recognition score of 60
licensure or registration is available, the testing must be medically appropriate, and percent or less determined using the HINT
audiologist must be currently certified by the you must be able to tolerate it. If you cannot (see 2.00B3b).
American Board of Audiology or have a be tested at 35 to 40 dB above your SRT, the * * * * *
Certificate of Clinical Competence (CCC–A) person who performs the test should report
from the American Speech-Language-Hearing your word recognition testing score at your Part B
Association (ASHA). highest comfortable level of amplification. * * * * *
102.00 SPECIAL SENSES AND SPEECH otoscopic examination must show that there most recently published ANSI standards.
* * * * * are no conditions that would prevent valid Each ear must be tested separately.
audiometric testing, such as fluid in the ear, (ii) To determine whether your hearing loss
B. How do we evaluate hearing loss? ear infection, or obstruction in an ear canal. meets the air and bone conduction criterion
The person performing the test should also in 102.10B1 or 102.10B3, we will average
1. What evidence do we need?
report on any other factors, such as your your hearing thresholds at 500, 1000, 2000,
a. We need evidence showing that you ability to maintain attention, that can affect and 4000 Hz. If you do not have a response
have a medically determinable impairment the interpretation of the test results. at a particular frequency, we will use a
that causes your hearing loss and
c. Children From Birth to the Attainment of threshold of 5 dB over the limit of the
audiometric measurements of the severity of
your hearing loss. We generally require both Age 6 Months audiometer.
a complete otologic examination and (i) We need physiologic testing, such as (iii) The SRT is the minimum dB level
audiometric testing to establish that you have auditory brainstem response (ABR) testing. required for you to recognize 50 percent of
a medically determinable impairment that (ii) To determine whether your hearing loss the words on a standard list of spondee
causes your hearing loss. You should have meets 102.10A, we will average your hearing words. (Spondee words are two-syllable
this audiometric testing within 2 months of thresholds at 500, 1000, 2000, and 4000 Hertz words that have equal stress on each
the complete otologic examination. Once we (Hz). If you do not have a response at a syllable.) The SRT is usually within 10 dB of
have evidence that you have a medically particular frequency, we will use a threshold the average pure tone air conduction hearing
determinable impairment, we can use the of 5 decibels (dB) over the limit of the thresholds at 500, 1000, and 2000 Hz. If the
results of later audiometric testing to assess audiometer. SRT is not within 10 dB of the average pure
the severity of your hearing loss without d. Children From Age 6 Months to the tone air conduction threshold, the reason for
another complete otologic examination. We Attainment of Age 2 the discrepancy must be documented. If we
will consider your test scores together with cannot determine that there is a medical
(i) We need air conduction thresholds basis for the discrepancy, we will not use the
any other relevant information we have about
determined by a behavioral assessment, results of the testing to determine whether
your hearing, including information from
usually visual reinforcement audiometry your hearing loss meets a listing.
outside of the test setting.
(VRA). We can use ABR testing if the (iv) Word recognition testing determines
b. The complete otologic examination must
behavioral assessment cannot be completed your ability to recognize an age-appropriate,
be performed by a licensed physician
or if the results are inconclusive or
(medical or osteopathic doctor). It must standardized list of phonetically balanced
unreliable.
include your medical history, your monosyllabic words in the absence of any
(ii) To determine whether your hearing loss
description of how your hearing loss affects visual cues. This testing must be performed
meets 102.10A, we will average your hearing
you, and the physician’s description of the in quiet. The list may be recorded or
thresholds at 500, 1000, 2000, and 4000 Hz.
appearance of the external ears (pinnae and presented live, but in either case, the words
If you do not have a response at a particular
external ear canals), evaluation of the should be presented at a level of
frequency, we will use a threshold of 5 dB
tympanic membranes, and assessment of any amplification that will measure your
over the limit of the audiometer.
middle ear abnormalities. maximum ability to discriminate words,
(iii) For this age group, behavioral
c. Audiometric testing must be performed usually 35 to 40 dB above your SRT.
assessments are often performed in a sound
by, or under the direct supervision of, an However, the amplification level used in the
field, and each ear is not tested separately.
otolaryngologist or by an audiologist testing must be medically appropriate, and
If each ear is not tested separately, we will
qualified to perform such tests. We consider you must be able to tolerate it. If you cannot
consider the test results to represent the
an audiologist to be qualified if he or she is be tested at 35 to 40 dB above your SRT, the
hearing in the better ear.
currently and fully licensed or registered as person who performs the test should report
a clinical audiologist by the State or U.S. e. Children From Age 2 to the Attainment of your word recognition testing score at your
territory in which he or she practices. If no Age 5 highest comfortable level of amplification.
licensure or registration is available, the (i) We need air conduction thresholds g. Screening testing. Physiologic testing,
audiologist must be currently certified by the determined by a behavioral assessment, such such as ABR and otoacoustic emissions
American Board of Audiology or have a as conditioned play audiometry (CPA), (OAE), and pure tone testing can be used as
Certificate of Clinical Competence (CCC–A) tangible or visually reinforced operant hearing screening tests. We will not use these
from the American Speech-Language-Hearing conditioning audiometry (TROCA, VROCA), tests to determine that your hearing loss
Association (ASHA). or VRA. If you have had ABR testing, we can meets or medically equals a listing, or to
2. What audiometric testing do we need when use the results of that testing if the behavioral assess functional limitations due to your
you do not have a cochlear implant? assessment cannot be completed or the hearing loss, when they are used only as
results are inconclusive or unreliable. screening tests. We can consider normal
a. General. We need either physiologic or (ii) To determine whether your hearing loss
behavioral testing (other than screening results from hearing screening tests to
meets 102.10A, we will average your hearing determine that your hearing loss is not
testing, see 102.00B2g) that is appropriate for thresholds at 500, 1000, 2000, and 4000 Hz.
your age at the time of testing. See ‘‘severe’’ when these test results are
If you do not have a response at a particular consistent with the other evidence in your
102.00B2c–102.00B2f. We will make every frequency, we will use a threshold of 5 dB
reasonable effort to obtain the results of case record. See § 416.924(c).
over the limit of the audiometer.
physiologic testing that has been done; (iii) For this age group, behavioral 3. What audiometric testing do we need when
however, we will not purchase such testing. assessments are often performed in a sound you have a cochlear implant?
b. Testing requirements. The testing must field and each ear is not tested separately. If
be conducted in accordance with the most a. If you have a cochlear implant, we will
each ear is not tested separately, we will consider you to be disabled until age 5, or for
recently published standards of the American consider the test results to represent the
National Standards Institute (ANSI). You 1 year after initial implantation, whichever is
hearing in the better ear. later.
must not wear hearing aids during the
testing. Additionally, a person described in f. Children From Age 5 to the Attainment of b. After that period, we need word
102.00B1c must perform an otoscopic Age 18 recognition testing performed with any age-
examination immediately before the (i) We generally need pure tone air appropriate version of the Hearing in Noise
audiometric testing. (An otoscopic conduction and bone conduction testing, Test (HINT) or the Hearing in Noise Test for
examination provides a description of the speech reception threshold (SRT) testing Children (HINT–C) to determine whether
appearance of your external ear canals and an (also referred to as ‘‘spondee threshold’’ or your impairment meets 102.11B. This testing
evaluation of the tympanic membranes. In ‘‘ST’’ testing), and word recognition testing must be conducted in quiet in a sound field.
these rules, we use the term to include (also referred to as ‘‘word discrimination’’ or Your implant must be functioning properly
otoscopic examinations performed by ‘‘speech discrimination’’ testing). This testing and adjusted to your normal settings. The
physicians and otoscopic inspections must be conducted in a sound-treated booth sentences should be presented at 60 dB HL
performed by audiologists and others.) The or room and must be in accordance with the (Hearing Level) and without any visual cues.
4. How do we evaluate your word recognition 3. An average air conduction hearing SUPPLEMENTARY INFORMATION: Pursuant
ability if you are not fluent in English? threshold of 50 decibels or greater in the to 29 U.S.C. 171(b) and 29 CFR part
If you are not fluent in English, you should better ear and a marked limitation in speech 1404, FMCS maintains a roster of
have word recognition testing using an or language (see 102.00B2f and 102.00B5). qualified labor arbitrators to hear
appropriate word list for the language in 102.11 Hearing Loss Treated With Cochlear disputes arising under collective
which you are most fluent. The person Implantation bargaining agreements and provide fact
conducting the test should be fluent in the A. Consider under a disability until the finding and interest arbitration. FMCS
language used for the test. If there is no attainment of age 5 or for 1 year after initial
appropriate word list or no person who is amends its rules pertaining to such
implantation, whichever is later. arbitration services as follows: The
fluent in the language and qualified to
perform the test, it may not be possible to OR revised rule relating to the removal of
measure your word recognition ability. If B. Upon the attainment of age 5 or 1 year arbitrators from the roster provides that
your word recognition ability cannot be after initial implantation, whichever is later, FMCS will give written notice of
measured, your hearing loss cannot meet a word recognition score of 60 percent or less removal to the affected arbitrator. The
102.10B2 or 102.11B. Instead, we will determined using the HINT or the HINT–C revised rule relating to complaints
consider the facts of your case to determine (see 102.00B3b). against arbitrators provides that
whether you have difficulty understanding * * * * * complaints should be in writing and
words in the language in which you are most [FR Doc. 2010–13094 Filed 6–1–10; 8:45 am]
fluent, and if so, whether that degree of directed to the director of the office of
difficulty medically equals 102.10B2 or
BILLING CODE 4191–02–P arbitration services, and should cite
102.11B. For example, we will consider how specific sections of the professional
you interact with family members, code or FMCS rules allegedly violated
interpreters, and other persons who speak the FEDERAL MEDIATION AND by the arbitrator. The revised rule on
language in which you are most fluent. CONCILIATION SERVICE arbitrators’ inactive status clarifies the
5. What do we mean by a marked limitation applicable annual listing fee and
in speech or language as used in 102.10B3? 29 CFR Part 1404 suggests that arbitrators use inactive
a. We will consider you to have a marked status to assist them in certain
RIN 3076–AA12 scheduling circumstances. The revised
limitation in speech if:
(i) Entire phrases or sentences in your rule on procedures for requesting panels
Arbitration Services
conversation are intelligible to unfamiliar and lists provides that FMCS may
listeners at least 50 percent (half) of the time AGENCY: Federal Mediation and decline to service any request from a
but no more than 67 percent (two-thirds) of Conciliation Service. party for arbitration lists or panels based
the time on your first attempt; and on the party’s non-payment of arbitrator
(ii) Your sound production or phonological ACTION: Final rule.
fees. The revised rule on the selection
patterns (the ways in which you combine
SUMMARY: This final rule amends the by parties and appointment of
speech sounds) are atypical for your age.
b. We will consider you to have a marked Federal Mediation and Conciliation arbitrators provides that arbitrators must
limitation in language when your current and Service (FMCS) rules pertaining to provide FMCS with certain information
valid test score on an appropriate arbitration services. It revises rules upon being selected by a party. The
comprehensive, standardized test of overall addressing the removal of arbitrators revised rules describe the methods of
language functioning is at least two standard from the FMCS roster, the process arbitrator selection that FMCS will
deviations below the mean. In addition, the relating to complaints about arbitrators, accept, where the parties’ collective
evidence of your daily communication procedures for requesting lists and agreement is silent on the manner of
functioning must be consistent with your test selection. These changes are intended to
score. If you are not fluent in English, it may panels, arbitrators’ inactive status, the
selection by parties and appointment of make FMCS’s arbitration procedures
not be possible to test your language
performance. If we cannot test your language arbitrators, and arbitrators’ obligation to more efficient and effective.
performance, your hearing loss cannot meet provide FMCS with certain case FMCS also amends Appendix to Part
102.10B3. Instead, we will consider the facts information. The final rule also provides 1404 to increase the annual listing fee
of your case to determine whether your that FMCS may decline to service any from $100 to $150 for all arbitrators on
hearing loss medically equals 102.10B3. request by a party for an arbitration list the FMCS roster. With increasing
* * * * * or panel based on the party’s non- frequency, parties have been requesting
102.01 Category of Impairments, Special payment of arbitrator fees. In addition, that FMCS furnish arbitration panels
Senses and Speech the final rule raises the annual listing that are individualized to the dispute at
fee for all arbitrators on the FMCS issue. This requires detailed research
* * * * * and review of arbitrators’ biographies.
102.10 Hearing Loss Not Treated With
roster. The changes will promote more
efficient and effective procedures The increased listing fee reflects the cost
Cochlear Implantation in staff time necessary to be responsive
involving arbitrator retention and
A. For children from birth to the to these requests as well as the costs
attainment of age 5, an average air
arbitration services. The increased
annual listing fee more accurately associated with updating arbitrator
conduction hearing threshold of 50 decibels biographies.
or greater in the better ear (see 102.00B2). reflects FMCS’s costs of maintaining
This rule is not a significant
OR and responding to requests for
regulatory action for the purposes of
B. For children from age 5 to the
arbitrators’ biographical data. The final
Executive Order 12866 and has not been
attainment of age 18: rule withdraws the proposed revisions
reviewed by the Office of Management
to § 1404.9(b).
1. An average air conduction hearing and Budget. As required by the

threshold of 70 decibels or greater in the DATES: This final rule is effective July 2, Regulatory Flexibility Act, I certify that
better ear and an average bone conduction 2010.
hearing threshold of 40 decibels or greater in
this rule will not have a significant
FOR FURTHER INFORMATION CONTACT: impact on a substantial number of small
the better ear (see 102.00B2f); or
2. A word recognition score of 40 percent Vella M. Traynham, Director, Office of entities. This regulation does not have
or less in the better ear determined using a Arbitration Services, FMCS, 2100 K any federalism or tribal implications.
standardized list of phonetically balanced Street, NW., Washington, DC 20427. Background: On August 6, 2008,
monosyllabic words (see 102.00B2f); or Telephone: (202) 606–5111. FMCS published a Notice of Proposed
Rulemaking (NPRM) proposing changes List of Subjects in 29 CFR Part 1404 § 1404.9 Procedures for requesting
to its rules relating to the removal of arbitration lists and panels.
Administrative practice and
arbitrators from the FMCS roster, the procedure, Labor management relations. * * * * *
process relating to complaints about (d) The OAS reserves the right to
■ For the reasons stated in the preamble,
arbitrators, procedures for requesting decline to submit a panel or to make an
FMCS amends 29 CFR Part 1404 as
arbitrator lists and panels, arbitrators’ appointment of an arbitrator if the
follows:
inactive status, the selection by parties request submitted is overly burdensome
and appointment of arbitrators, and PART 1404—ARBITRATION SERVICES or otherwise impracticable. The OAS, in
arbitrators’ obligation to provide FMCS such circumstances, may refer the
with certain case information. The ■ 1. The authority citation for part 1404 parties to an FMCS mediator to help in
proposed rules also addressed FMCS’s continues to read as follows: the design of an alternative solution.
response to requests for arbitration lists Authority: 29 U.S.C. 172 and 29 U.S.C. 173 The OAS may also decline to service
or panels made by one party, where the et seq. any request from a party based on the
collective bargaining agreement requires party’s non-payment of arbitrator fees or
■ 2. Amend § 1404.5 by revising
that the request be jointly submitted. In other behavior that constrains the spirit
paragraph (d) introductory text to read
addition, the proposed rules addressed or operation of the arbitration process.
as follows:
FMCS’s option to decline to service any * * * * *
request from a party, based on the § 1404.5 Listing on the roster; criteria for ■ 5. Revise § 1404.12 to read as follows:
party’s non-payment of arbitrator fees, listing and retention.
and raised the annual listing fee for * * * * * § 1404.12 Selection by parties and
(d) Listing on roster, removal. Listing appointment of arbitrators.
arbitrators on the FMCS roster.
on the Roster shall be by decision of the (a) After receiving a panel of names,
FMCS is adopting the final rule with Director of FMCS based upon the the parties must notify the OAS of their
one change from that which was recommendations of the Board or upon selection of an arbitrator or of the
proposed. The final rule withdraws the the Director’s own initiative. The Board decision not to proceed with arbitration.
proposed revisions to § 1404.9(b), which may recommend for removal, and the Upon notification of the selection of an
had modified FMCS’s response to Director may remove, any person listed arbitrator, the OAS will make a formal
requests for arbitration lists or panels on the Roster for violation of this Part appointment of the arbitrator. The
made by one party, where the collective or of the Code of Professional arbitrator, upon notification of
bargaining agreement requires that the Responsibility. FMCS will provide to appointment, shall communicate with
request be jointly submitted. the affected arbitrator written notice of the parties within 14 days to arrange for
Discussion of Comments: FMCS removal from the Roster. Complaints preliminary matters, such as the date
received comments from two sources in about arbitrators should be in writing and place of hearing. Should an
response to the NPRM. One and sent to the Director of OAS. The arbitrator be notified directly by the
commentator suggested that the complaint should cite the specific parties that he or she has been selected,
proposed changes to § 1404.9(b) insert section of the Code or the FMCS rule the the arbitrator must promptly notify the
FMCS into the arena of administering arbitrator has allegedly violated. The OAS of the selection and of his or her
and interpreting collective bargaining following criteria shall be a basis for the willingness to serve. The arbitrator must
agreements, and do not take into Board to recommend and/or the Director provide the OAS with the FMCS case
account the parties’ past practices. to initiate a member’s removal from the number and other pertinent information
FMCS has given careful review and Roster: for the OAS to make an appointment. A
consideration to the comment and the * * * * * pattern of failure by an arbitrator to
language in the proposed revision to notify FMCS of a selection in an FMCS
■ 3. Revise § 1404.6 to read as follows: case may result in suspension or
§ 1404.9(b) and has determined it will
withdraw the revision to § 1404.9(b). § 1404.6 Inactive status. removal from the Roster. If the parties
settle a case prior to the hearing, the
FMCS received comments from two (a) A member of the Roster who
parties must inform the arbitrator as
sources regarding the proposed changes continues to meet the criteria for listing
well as the OAS. Consistent failure to
to § 1404.9(d). One commentator on the Roster may request that he or she
follow these procedures may lead to a
opposed the revision to the extent that be put in an inactive status on a
denial of future OAS services.
it could allow a single failure to pay an temporary basis because of ill heath,
(b) If the parties request a list of
arbitrator’s fees to disqualify a party vacation, schedule or other reasons.
names and biographical sketches rather
from obtaining a panel. Another (b) Arbitrators whose schedules do
than a panel, the parties may choose to
commentator objected to the revision not permit cases to be heard within six
contact and select an arbitrator directly
because the proposed rule does not months of assignment are encouraged to
from that list. In this situation, neither
differentiate between a genuine fee make themselves inactive temporarily
the parties nor the arbitrator is required
dispute and simple nonpayment. FMCS until their caseload permits the earlier
to furnish any additional information to
has given careful review and scheduling of cases.
FMCS and no case number will be
consideration to the comments. FMCS (c) An arbitrator can remain on
assigned.
has determined, however, that the inactive status without paying any
(c) Where the parties’ collective
annual listing fee for a period of two (2)
proposed rule, by stating only that bargaining agreement is silent on the

FMCS’s office of arbitration services years. If an arbitrator is on inactive
manner of selecting arbitrators, FMCS
status for longer than two (2) years, the
may decline to service any request from will accept one of the following
arbitrator will be removed from the
a party based on the party’s non- methods for selection from a panel:
Roster unless he or she pays the annual
payment of fees, will ensure that (1) A selection by mutual agreement;
listing fee.
decisions whether to decline services (2) A selection in which each party
will be considered. Accordingly, no ■ 4. Amend § 1404.9 by revising alternately strikes a name from the
changes are made to the final rule. paragraph (d) to read as follows: submitted panel until one remains;
(3) A selection in which each party ACTION: Temporary final rule. Basis and Purpose
advises OAS of its order of preference The Onslow County North Carolina
by numbering each name on the panel SUMMARY: The Coast Guard is
establishing a temporary safety zone on Emergency Services will be conducting
and submitting the numbered list in a multi agency exercise to test response
writing to OAS. If the parties separately the waters of Wilson Bay at Jacksonville,
North Carolina for training purposes. capabilities of water rescue services in
notify OAS of their preferred selections, a mass casualty scenario on the waters
OAS, upon receiving the preferred The safety zone is necessary to provide
for the safety of the general public and of Wilson Bay, Onslow County, North
selection of the first party, will notify Carolina from 6 a.m. to 5 p.m. June 9,
the other party that it has fourteen (14) exercise participants from potential
hazards associated with low flying 2010. The exercise is designed to train
days in which to submit its selections. and test air and surface personnel in the
Where both parties respond, the name helicopters and vessels participating in
judgmental decisionmaking process
that has the lowest combined number this multi agency exercise.
necessary to safely and effectively
will be appointed. If the other party fails DATES: This rule is effective from 6 a.m. respond to a mass casualty incident.
to respond, the first party’s choice will until 5 p.m. on June 9, 2010. The exercise will involve helicopters,
be honored. ADDRESSES: Comments and material vessels, safety craft, divers, and rescue
(d) Where the parties’ collective received from the public, as well as swimmers. This zone is necessary to
bargaining agreement permits each party documents mentioned in this preamble establish a temporary restricted area in
to separately notify OAS of its preferred as being available in the docket, are part Wilson Bay to ensure the safety of
selection, OAS will proceed with the of docket USCG–2010–0158 and are participants within the exercise site.
selection process as follows. When the available online by going to http://
OAS receives the preferred selection www.regulations.gov, inserting USCG– Discussion of Comments and Changes
from one party, it will notify the other 2010–0158 in the ‘‘Keyword’’ box, and We received no comments on the
party that it has fourteen (14) days in then clicking ‘‘Search.’’ This material is proposed rule. No public meeting was
which to submit its selections. If that also available for inspection or copying requested, and none was held. The
party fails to respond within the at the Docket Management Facility (M– Coast Guard is implementing the rule as
deadline, the first party’s choice will be 30), U.S. Department of Transportation, proposed, without change.
honored unless prohibited by the West Building Ground Floor, Room Regulatory Analyses
collective bargaining agreement. Where W12–140, 1200 New Jersey Avenue, SE.,
both parties respond, the name that has Washington, DC 20590, between 9 a.m. We developed this rule after
the lowest combined number will be and 5 p.m., Monday through Friday, considering numerous statutes and
appointed. If, within fourteen (14) days, except Federal holidays. executive orders related to rulemaking.
a second panel is requested, and is Below we summarize our analyses
FOR FURTHER INFORMATION CONTACT: If
permitted by the collective bargaining based on 13 of these statutes or
you have questions on this temporary
agreement, the requesting party must executive orders.
rule, call or e-mail CWO4 Stephen
pay a fee for the second panel. Lyons, Waterways Management Regulatory Planning and Review
(e) The OAS will make a direct Division Chief, Coast Guard Sector
appointment of an arbitrator only upon This rule is not a significant
North Carolina; telephone (252) 247– regulatory action under section 3(f) of
joint request or as provided by 4525, e-mail
paragraphs (c) (3) or (d) of this section. Executive Order 12866, Regulatory
Stephen.W.Lyons2@uscg.mil. If you Planning and Review, and does not
(f) A direct appointment in no way have questions on viewing the docket,
signifies a determination of arbitrability require an assessment of potential costs
call Renee V. Wright, Program Manager, and benefits under section 6(a)(3) of that
or a ruling that an agreement to arbitrate Docket Operations, telephone 202–366–
exists. The resolution of disputes over Order. The Office of Management and
9826. Budget has not reviewed it under that
these issues rests solely with the parties.
SUPPLEMENTARY INFORMATION: Order.
■ 6. Amend the Appendix to 29 CFR Although this regulation will restrict
Regulatory Information
Part 1404 by removing ‘‘$100’’ and access to the area, the effect of this rule
adding ‘‘$150’’ in its place. On April 2, 2010, we published a will not be significant because: (i) The
notice of proposed rulemaking (NPRM) safety zone will only be in effect from
Dated: May 26, 2010.
entitled Safety Zone: Wilson Bay, 6 a.m. to 5 p.m. on June 9, 2010, (ii) the
Jeannette Walters-Marquez,
Jacksonville, NC in the Federal Register Coast Guard will give advance
Attorney Advisor. (75 FR 16703). We received no notification via maritime advisories so
[FR Doc. 2010–13120 Filed 6–1–10; 8:45 am] comments on the proposed rule. No mariners can adjust their plans
BILLING CODE 6732–01–P public meeting was requested, and none accordingly, and (iii) although the safety
was held. zone will apply to a section of Wilson
Under 5 U.S.C. 553(d)(3), the Coast Bay, it will not restrict vessel traffic in
DEPARTMENT OF HOMELAND Guard finds that good cause exists for the federally marked channel.
SECURITY making this rule effective less than 30
days after publication in the Federal Small Entities
Coast Guard Register. Due to the need for immediate Under the Regulatory Flexibility Act
action, the restriction of vessel traffic is (5 U.S.C. 601–612), we have considered
33 CFR Part 165 necessary to protect life, property and whether this rule would have a
[Docket No. USCG–2010–0158] the environment; therefore, a 30-day significant economic impact on a
notice is impracticable. Delaying the substantial number of small entities.
RIN 1625–AA00 effective date would be contrary to the The term ‘‘small entities’’ comprises
safety zone’s intended objectives of small businesses, not-for-profit
Safety Zone; Wilson Bay, Jacksonville,
protecting persons and vessels involved organizations that are independently
NC
in the event, and enhancing public and owned and operated and are not
AGENCY: Coast Guard, DHS. maritime safety. dominant in their fields, and
governmental jurisdictions with this rule under that Order and have energy. The Administrator of the Office
populations of less than 50,000. determined that it does not have of Information and Regulatory Affairs
The Coast Guard certifies under 5 implications for federalism. has not designated it as a significant
U.S.C. 605(b) that this proposed rule energy action. Therefore, it does not
would not have a significant economic Unfunded Mandates Reform Act
require a Statement of Energy Effects
impact on a substantial number of small The Unfunded Mandates Reform Act under Executive Order 13211.
entities. of 1995 (2 U.S.C. 1531–1538) requires
This rule will affect the following Federal agencies to assess the effects of Technical Standards
entities, some of which may be small their discretionary regulatory actions. In
The National Technology Transfer
entities: The owners or operators of particular, the Act addresses actions
and Advancement Act (NTTAA) (15
recreational and fishing vessels that may result in the expenditure by a
U.S.C. 272 note) directs agencies to use
intending to transit the specified portion State, local, or tribal government, in the
voluntary consensus standards in their
of Wilson Bay from 6 a.m. to 5 p.m. on aggregate, or by the private sector of
regulatory activities unless the agency
June 9, 2010. $100,000,000 (adjusted for inflation) or
This safety zone will not have a provides Congress, through the Office of
more in any one year. Though this rule
significant economic impact on a Management and Budget, with an
will not result in such an expenditure,
substantial number of small entities for we do discuss the effects of this rule explanation of why using these
the following reasons. This rule will elsewhere in this preamble. standards would be inconsistent with
only be in effect from 6 a.m. to 5 p.m. applicable law or otherwise impractical.
on June 9, 2010. Although the safety Taking of Private Property Voluntary consensus standards are
zone will apply to the section of Wilson This rule will not cause a taking of technical standards (e.g., specifications
Bay, it will not restrict vessel traffic in private property or otherwise have of materials, performance, design, or
the federally marked channel. Before the taking implications under Executive operation; test methods; sampling
effective period, the Coast Guard will Order 12630, Governmental Actions and procedures; and related management
issue maritime advisories widely Interference with Constitutionally systems practices) that are developed or
available to the users of the waterway. Protected Property Rights. adopted by voluntary consensus
standards bodies.
Assistance for Small Entities Civil Justice Reform
This rule does not use technical
Under section 213(a) of the Small This rule meets applicable standards standards. Therefore, we did not
Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus
Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to standards.
in the NPRM we offered to assist small minimize litigation, eliminate
entities in understanding the rule so ambiguity, and reduce burden. Environment
that they could better evaluate its effects
Protection of Children We have analyzed this rule under
on them and participate in the
rulemaking process. We have analyzed this rule under Department of Homeland Security
Small businesses may send comments Executive Order 13045, Protection of Management Directive 023–01 and
on the actions of Federal employees Children from Environmental Health Commandant Instruction M16475.lD,
who enforce, or otherwise determine Risks and Safety Risks. This rule is not which guide the Coast Guard in
compliance with, Federal regulations to an economically significant rule and complying with the National
the Small Business and Agriculture does not create an environmental risk to Environmental Policy Act of 1969
Regulatory Enforcement Ombudsman health or risk to safety that may (NEPA)(42 U.S.C. 4321–4370f), and
and the Regional Small Business disproportionately affect children. have concluded this action is one of a
Regulatory Fairness Boards. The category of actions that do not
Indian Tribal Governments individually or cumulatively have a
Ombudsman evaluates these actions
annually and rates each agency’s This rule does not have tribal significant effect on the human
responsiveness to small business. If you implications under Executive Order environment. This rule is categorically
wish to comment on actions by 13175, Consultation and Coordination excluded, under figure 2–1, paragraph
employees of the Coast Guard, call with Indian Tribal Governments, (34)(g), of the Instruction. This rule
1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial establishes a temporary safety zone to
The Coast Guard will not retaliate direct effect on one or more Indian protect the general public and exercise
against small entities that question or tribes, on the relationship between the participants from potential hazards
complain about this rule or any policy Federal Government and Indian tribes, associated with low flying helicopters
or action of the Coast Guard. or on the distribution of power and and vessels participating in this multi
responsibilities between the Federal agency exercise. An environmental
Collection of Information Government and Indian tribes. analysis checklist and a categorical
This rule calls for no new collection exclusion determination are available in
Energy Effects
of information under the Paperwork the docket where indicated under
Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under ADDRESSES.
3520). Executive Order 13211, Actions
Concerning Regulations That List of Subjects in 33 CFR Part 165
Federalism Significantly Affect Energy Supply,

Harbors, Marine safety, Navigation
A rule has implications for federalism Distribution, or Use. We have
(water), Reporting and recordkeeping
under Executive Order 13132, determined that it is not a ‘‘significant
requirements, Security measures,
Federalism, if it has a substantial direct energy action’’ under that order because
Waterways.
effect on State or local governments and it is not a ‘‘significant regulatory action’’
would either preempt State law or under Executive Order 12866 and is not ■ For the reasons discussed in the
impose a substantial direct cost of likely to have a significant adverse effect preamble, the Coast Guard amends 33
compliance on them. We have analyzed on the supply, distribution, or use of CFR part 165 as follows:
PART 165—REGULATED NAVIGATION DEPARTMENT OF HOMELAND days after publication in the Federal
AREAS AND LIMITED ACCESS AREAS SECURITY Register because delaying the effective
date would be contrary to the public
■ 1. The authority citation for part 165 Coast Guard interest due to the need to protect the
continues to read as follows: public from the dangers associated with
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 33 CFR Part 165 air racing.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; [Docket No. USCG–2010–0174] Basis and Purpose
33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5;
Pub. L. 107–295, 116 Stat. 2064; Department RIN 1625–AA00 This temporary safety zone is
of Homeland Security Delegation No. 0170.1 necessary to ensure the safety of vessels
Safety Zone; Red Bull Air Race, Detroit
■ 2. Add § 165.T05–0158 to read as and the public from hazards associated
River, Detroit, MI
follows: with an air race. The Captain of the Port
AGENCY: Coast Guard, DHS. Detroit has determined air races in close
§ 165.T05–0158 Safety Zone; Wilson Bay, ACTION: Temporary final rule. proximity to watercraft and
Jacksonville, NC. infrastructure pose a significant risk to
SUMMARY: The Coast Guard is public safety and property. The likely
(a) Definitions. For the purposes of
establishing a temporary safety zone on combination of large numbers of
this section, Captain of the Port means
the Detroit River, Detroit, Michigan. recreational vessels, airplanes traveling
the Commander, Sector North Carolina.
This zone is intended to restrict vessels at high speeds and performing aerial
Representative means any Coast Guard
from portions of the Detroit River during acrobatics, and large numbers of
commissioned, warrant, or petty officer
the Red Bull Air Race. This temporary spectators in close proximity on the
who has been authorized to act on the
safety zone is necessary to protect water could easily result in serious
behalf of the Captain of the Port.
spectators and vessels from the hazards injuries or fatalities. Establishing a
(b) Location. The following area is a associated with air races. safety zone around the location of the
safety zone: The safety zone is DATES: This rule is effective from 9 a.m. race’s course will help ensure the safety
established for the navigable waters, on June 3, 2010 through 6:30 p.m. on of persons and property at these events
from the surface to the seafloor, defined June 6, 2010. and help minimize the associated risks.
by enclosing an area south of a line
ADDRESSES: Comments and material
drawn from New River Channel Discussion of the Rule
received from the public, as well as
Daybeacon 61 (34°44′30″ N/077°26′20″ The Coast Guard is establishing a
documents mentioned in this preamble
W) to the north tip of Ethridge Point temporary safety zone on the specified
as being available in the docket, are part
(34°44′37″ N/077°26′06″ W) and U.S. waters of the Detroit River, Detroit,
of docket USCG–2010–0174 and are
extending 1⁄2 nautical mile south from MI, bound by a line extending from a
available online by going to http://
the boundary line. point on land southwest of Joe Louis
www.regulations.gov, inserting USCG–
(c) Regulations. (1) The general 2010–0174 in the ‘‘Keyword’’ box, and Arena at position 42°19.4′ N; 083°3.3′
regulations contained in § 165.23 of this then clicking ‘‘Search.’’ This material is W, northeast along the Detroit shoreline
part apply to the area described in also available for inspection or copying to a point on land at position 42°20.0′
paragraph (b) of this section. at the Docket Management Facility (M– N; 083°1.2′ W, southeast to the
(2) Persons or vessels requiring entry 30), U.S. Department of Transportation, international border with Canada at
into or passage through any portion of West Building Ground Floor, Room position 42°19.8′ N 083°1.0′ W,
the safety zone must first request W12–140, 1200 New Jersey Avenue, SE., southwest along the international border
authorization from the Captain of the Washington, DC 20590, between 9 a.m. to position 42°19.2′ N; 083°3.3′ W, and
Port, or a designated representative, and 5 p.m., Monday through Friday, northwest to the point of origin at
unless the Captain of the Port except Federal holidays. position 42°19.4′ N; 083°3.3′ W.
previously announced via Marine Safety FOR FURTHER INFORMATION CONTACT: If (DATUM: NAD 83).
Radio Broadcast on VHF Marine Band you have questions on this rule, call or This rule will be enforced for
Radio channel 22 (157.1 MHz) that this e-mail CDR Joseph Snowden, approximately six hours each day of its
regulation will not be enforced in that Prevention Department, Sector Detroit, effective period. Additionally, prior to
portion of the safety zone. The Captain Coast Guard; telephone (313) 568–9508, the event, local sailing and yacht clubs
of the Port can be contacted at telephone e-mail Joseph.H.Snowden@uscg.mil. If will be provided with information by
number (252) 247–4570 or by radio on you have questions on viewing the Coast Guard Station Belle Isle on what
VHF Marine Band Radio, channels 13 docket, call Renee V. Wright, Program to expect during the event. Station Belle
and 16. Manager, Docket Operations, telephone Isle will do this in order to minimize
(d) Enforcement. The U.S. Coast 202–366–9826. interruptions in the normal business
Guard may be assisted in the patrol and SUPPLEMENTARY INFORMATION: practices of local sailing and yacht
enforcement of the zone by Federal, clubs. In the event this temporary safety
State, and local agencies. Regulatory Information zone affects shipping, commercial
(e) Enforcement period. This section On April 5, 2010, we published a vessels may request permission from the
will be enforced from 6 a.m. to 5 p.m. notice of proposed rulemaking (NPRM) Captain of the Port (COTP) Detroit to
on June 9, 2010 unless cancelled earlier entitled Safety Zone; Red Bull Air Race, transit through the safety zone. The
by the Captain of the Port. Detroit River, Detroit, MI in the Federal Coast Guard will give notice to the
Register (75 FR 17106). We received public via a Broadcast Notice to
Dated: May 17, 2010. zero comments on the proposed rule. No Mariners that the regulation is in effect.
A. Popiel, public meeting was requested, and none Additionally, the COTP Detroit will
Captain, U.S. Coast Guard, Captain of the was held. suspend enforcement of the safety zone
Port North Carolina. Under 5 U.S.C. 553(d)(3), the Coast if the event for which the zone is
[FR Doc. 2010–13116 Filed 6–1–10; 8:45 am] Guard finds that good cause exists for established ends earlier than the
BILLING CODE 9110–04–P making this rule effective less than 30 expected time.
Discussion of Comments and Changes passenger vessels have been involved in compliance on them. We have analyzed
We received no comments with regard the planning stages of this event and this rule under that Order and have
to this rule and no changes have been have had opportunities to make determined that it does not have
made to this rule. alternate arrangements with regards to implications for federalism. We did not
mooring positions and business receive any comments for this section.
Regulatory Analyses operations during the hours this safety
We developed this rule after zone will be in effect. Prior to the event, Unfunded Mandates Reform Act
considering numerous statutes and local sailing and yacht clubs will be The Unfunded Mandates Reform Act
executive orders related to rulemaking. provided with information by Coast
of 1995 (2 U.S.C. 1531–1538) requires
Below we summarize our analyses Guard Station Belle Isle on what to
Federal agencies to assess the effects of
based on 13 of these statutes or expect during the event. Station Belle
their discretionary regulatory actions. In
executive orders. Isle will do this in order to minimize
interruptions in the normal business particular, the Act addresses actions
Regulatory Planning and Review practices of local sailing and yacht that may result in the expenditure by a
This rule is not a significant clubs. In the event that this temporary State, local, or tribal government, in the
regulatory action under section 3(f) of safety zone affects shipping, commercial aggregate, or by the private sector of
Executive Order 12866, Regulatory vessels may request permission from the $100,000,000 (adjusted for inflation) or
Planning and Review, and does not Captain of the Port Detroit to transit more in any one year. Though this rule
require an assessment of potential costs through the safety zone. The Coast will not result in such expenditure, we
and benefits under section 6(a)(3) of that Guard will give notice to the public via do discuss the effects of this rule
Order. The Office of Management and a Broadcast Notice to Mariners that the elsewhere in this preamble. We did not
Budget has not reviewed it under that regulation is in effect. Additionally, the receive any comments for this section.
Order. COTP will suspend enforcement of the Taking of Private Property
Although this temporary rule restricts safety zone if the event for which the
access to the safety zone, the effect of zone is established ends earlier than the This rule will not cause a taking of
the rule will not be significant because: expected time. private property or otherwise have
(i) The minimal time that vessels will be taking implications under Executive
restricted from the zone; (ii) the zone is Assistance for Small Entities
Order 12630, Governmental Actions and
an area where the Coast Guard expects Under section 213(a) of the Small Interference with Constitutionally
insignificant adverse impact to mariners Business Regulatory Enforcement Protected Property Rights. We did not
from the zone’s activation; and (iii) Fairness Act of 1996 (Pub. L. 104–121), receive any comments for this section.
vessels may request permission from the in the NPRM we offered to assist small
COTP Detroit to transit through the entities in understanding the rule so Civil Justice Reform
safety zone. The Coast Guard will give that they could better evaluate its effects
notice to the public via a Broadcast on them and participate in the This rule meets applicable standards
Notice to Mariners that the regulation is rulemaking process. in sections 3(a) and 3(b)(2) of Executive
in effect. Small businesses may send comments Order 12988, Civil Justice Reform, to
on the actions of Federal employees minimize litigation, eliminate
Small Entities ambiguity, and reduce burden. We did
who enforce, or otherwise determine
Under the Regulatory Flexibility Act compliance with, Federal regulations to not receive any comments for this
(5 U.S.C. 601–612), we have considered the Small Business and Agriculture section.
whether this rule would have a Regulatory Enforcement Ombudsman Protection of Children
significant economic impact on a and the Regional Small Business
substantial number of small entities. Regulatory Fairness Boards. The We have analyzed this rule under
The term ‘‘small entities’’ comprises Ombudsman evaluates these actions Executive Order 13045, Protection of
small businesses, not-for-profit annually and rates each agency’s Children from Environmental Health
organizations that are independently responsiveness to small business. If you Risks and Safety Risks. This rule is not
owned and operated and are not wish to comment on actions by an economically significant rule and
dominant in their fields, and employees of the Coast Guard, call 1– does not create an environmental risk to
governmental jurisdictions with 888–REG–FAIR (1–888–734–3247). The health or risk to safety that may
populations of less than 50,000. Coast Guard will not retaliate against disproportionately affect children. We
The Coast Guard certifies under 5 small entities that question or complain did not receive any comments for this
U.S.C. 605(b) that this rule will not have about this rule or any policy or action section.
a significant economic impact on a of the Coast Guard.
substantial number of small entities. Indian Tribal Governments
This rule will affect the following Collection of Information
entities, some of which might be small This rule calls for no new collection This rule does not have tribal
entities: The owners or operators of of information under the Paperwork implications under Executive Order
vessels intending to transit or anchor in Reduction Act of 1995 (44 U.S.C. 3501– 13175, Consultation and Coordination
the portion of the Detroit River 3520). We did not receive any with Indian Tribal Governments,
discussed above between 9 a.m. June 3, comments for this section. because it does not have a substantial
2010 through 6:30 p.m. June 6, 2010. direct effect on one or more Indian
This temporary safety zone will not Federalism tribes, on the relationship between the
have a significant economic impact on A rule has implications for federalism Federal Government and Indian tribes,
a substantial number of small entities under Executive Order 13132, or on the distribution of power and
for the following reasons: This rule will Federalism, if it has a substantial direct responsibilities between the Federal
be enforced for approximately six hours effect on State or local governments and Government and Indian tribes. We did
each day of its effective period. would either preempt State law or not receive any comments for this
Additionally, small entities such as impose a substantial direct cost of section.
Energy Effects List of Subjects in 33 CFR Part 165 (4) Vessel operators desiring to enter
We have analyzed this rule under Harbors, Marine Safety, Navigation or operate within the safety zone shall
Executive Order 13211, Actions (water), Reporting and recordkeeping contact the Captain of the Port Detroit
Concerning Regulations That requirements, Security measures, or his on-scene representative to obtain
Significantly Affect Energy Supply, Waterways. permission to do so. Vessel operators
Distribution, or Use. We have given permission to enter or operate in
■ For the reasons discussed in the
determined that it is not a ‘‘significant the safety zone must comply with all
preamble, the Coast Guard amends 33 directions given to them by the Captain
energy action’’ under that order because CFR part 165 as follows:
it is not a ‘‘significant regulatory action’’ of the Port or his on-scene
under Executive Order 12866 and is not PART 165—REGULATED NAVIGATION representative.
likely to have a significant adverse effect AREAS AND LIMITED ACCESS AREAS Dated: May 7, 2010.
on the supply, distribution, or use of E.J. Marohn,
energy. The Administrator of the Office ■ 1. The authority citation for part 165
Commander, U.S. Coast Guard, Acting
of Information and Regulatory Affairs continues to read as follows: Captain of the Port Detroit.
has not designated it as a significant Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. [FR Doc. 2010–13118 Filed 6–1–10; 8:45 am]
energy action. Therefore, it does not Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; BILLING CODE 9110–04–P
require a Statement of Energy Effects 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5;
under Executive Order 13211. We did Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
not receive any comments for this ENVIRONMENTAL PROTECTION
section. ■ 2. Add § 165.T09–0174 to read as AGENCY
Technical Standards follows:
40 CFR Part 52
The National Technology Transfer § 165.T09–0174 Safety Zone; Red Bull Air
Race, Detroit River, Detroit, MI. [R05–OAR–2009–0731; FRL–9157–9
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use (a) Location. The following area is a
Approval and Promulgation of Air
voluntary consensus standards in their temporary safety zone: All U.S. waters
Quality Implementation Plans;
regulatory activities unless the agency of the Detroit River, Detroit, MI, bound
Wisconsin; Particulate Matter
provides Congress, through the Office of by a line extending from a point on land
Standards; Withdrawal of Direct Final
Management and Budget, with an southwest of Joe Louis Arena at position
Rule
explanation of why using these 42°19.4′ N; 083°3.3′ W, northeast along
standards would be inconsistent with the Detroit shoreline to a point on land AGENCY: Environmental Protection
applicable law or otherwise impractical. at position 42°20.0′ N; 083°1.2′ W, Agency (EPA).
Voluntary consensus standards are southeast to the international border ACTION: Withdrawal of direct final rule.
technical standards (e.g., specifications with Canada at position 42°19.8′ N
of materials, performance, design, or 083°1.0′ W, southwest along the SUMMARY: Due to the receipt of an
operation; test methods; sampling international border to position 42°19.2′ adverse comment, EPA is withdrawing
procedures; and related management N; 083°3.3′ W, and northwest to the the April 8, 2010 (75 FR 17865), direct
systems practices) that are developed or point of origin at position 42°19.4′ N; final rule approving Wisconsin’s update
adopted by voluntary consensus 083°3.3′ W. (DATUM: NAD 83). to its state ambient air quality standards.
standards bodies. (b) Effective Period. This regulation is The updates were made to the
This rule does not use technical effective from 9 a.m. on June 3, 2010 particulate matter standards by adding
standards. Therefore, we did not through 6:30 p.m. on June 6, 2010. The fine particulate standards and revoking
consider the use of voluntary consensus safety zone will be enforced daily from the state’s course particulate standards.
standards. We did not receive any 9 a.m. to 6:30 p.m. on June 3, 2010 The State of Wisconsin submitted this
comments for this section. through June 6, 2010. revision as a modification to the State
(c) Regulations. (1) In accordance with Implementation Plan on September 11,
Environment the general regulations in § 165.23 of 2009. In the direct final rule, EPA stated
We have analyzed this rule under this part, entry into, transiting, or that if adverse comments were
Department of Homeland Security anchoring within this safety zone is submitted by May 10, 2010, the rule
Management Directive 023–01 and prohibited unless authorized by the would be withdrawn and not take effect.
Commandant Instruction M16475.lD, Captain of the Port Detroit, or his On May 7, 2010, EPA received a
which guide the Coast Guard in designated on-scene representative. comment. EPA believes this comment is
complying with the National (2) This safety zone is closed to all adverse and, therefore, EPA is
Environmental Policy Act of 1969 vessel traffic, except as may be withdrawing the direct final rule. EPA
(NEPA)(42 U.S.C. 4321–4370f), and permitted by the Captain of the Port will address the comment in a
have concluded this action is one of a Detroit or his designated on-scene subsequent final action based upon the
category of actions that do not representative. proposed action also published on April
individually or cumulatively have a (3) The ‘‘on-scene representative’’ of 8, 2010 (75 FR 17894). EPA will not
significant effect on the human the Captain of the Port is any Coast institute a second comment period on
environment. This rule is categorically Guard commissioned, warrant, or petty this action.
excluded, under figure 2–1, paragraph officer who has been designated by the DATES: The direct final rule published at
(34)(g), of the Instruction. This rule Captain of the Port to act on his behalf. 75 FR 17865 on April 8, 2010, is
involves the establishment of a safety The on-scene representative of the withdrawn as of June 2, 2010.
zone. An environmental analysis Captain of the Port will be aboard either FOR FURTHER INFORMATION CONTACT: Matt
checklist and a categorical exclusion a Coast Guard or Coast Guard Auxiliary Rau, Environmental Engineer, Criteria
determination are available in the vessel. The Captain of the Port or his Pollutant Section, Air Programs Branch
docket where indicated under designated on scene representative may (AR–18J), Environmental Protection
ADDRESSES. be contacted via VHF Channel 16. Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, published final rules in this proceeding § 1011.7 Delegations of authority by the
(312) 886–6524, rau.matthew@epa.gov. on October 15, 2009, in the Federal Board to specific offices of the Board.
Register, at 74 FR 52900. (a) Office of Proceedings. (1) The
List of Subjects in 40 CFR Part 52 Director of the Office of Proceedings is
Environmental protection, Air List of Subjects delegated the following authority:
pollution control, Incorporation by 49 CFR Part 1002 (i) Whether (in consultation with
reference, Intergovernmental relations, involved Offices) to waive filing fees set
Particulate matter. Administrative practice and forth at 49 CFR 1002.2(f).
procedure, Common carriers, and (ii) To issue, on written request,
Authority: 42 U.S.C. 7401 et seq. Freedom of information. informal opinions and interpretations
Dated: May 14, 2010. (exclusive of informal opinions and
49 CFR Part 1011
Walter W. Kovalick, interpretations on carrier tariff
Acting Regional Administrator, Region 5. Administrative practice and provisions), which are not binding on
procedure, Authority delegations the Board. In issuing informal opinions
PART 52—[AMENDED] (Government agencies), and or interpretations, the Director of the
Organization and functions Office of Proceedings shall consult with
■ Accordingly, the amendment to 40 (Government agencies).
CFR 52.2570 published in the Federal the Directors of the appropriate Board
Register on April 8, 2010 (75 FR 17865) 49 CFR Part 1152 offices. Such requests must be directed
on pages 17867–17868 is withdrawn as to the Director of the Office of
Administrative practice and Proceedings, Surface Transportation
of June 2, 2010. procedure, Railroads, Reporting and Board, Washington, DC 20423–0001.
[FR Doc. 2010–13175 Filed 6–1–10; 8:45 am] recordkeeping requirements, and Authority to issue informal opinions
BILLING CODE 6560–50–P Uniform system of accounts. and interpretations on carrier tariff
49 CFR Part 1180 provisions is delegated at paragraph
(b)(2) of this section to the Office of
DEPARTMENT OF TRANSPORTATION Administrative practice and Public Assistance, Governmental
procedure, Railroads, and Reporting and Affairs, and Compliance.
Surface Transportation Board recordkeeping requirements. (2) In addition to the authority
Dated: May 26, 2010. delegated at 49 CFR 1011.6(c)(3), (d), (g),
49 CFR Parts 1002, 1011, 1152, and and (h), the Director of the Office of
Andrea Pope-Matheson,
1180 Proceedings shall have authority
Clearance Clerk.
[STB Ex Parte No. 685] initially to determine the following:
■ Accordingly, 49 CFR parts 1002, 1011, (i) Whether to designate abandonment
Removal of Delegations of Authority to 1152, and 1180 are corrected by making proceedings for oral hearings on request.
Secretary the following correcting amendments: (ii) Whether offers of financial
assistance satisfy the statutory standards
AGENCY: Surface Transportation Board, PART 1002—FEES of 49 U.S.C. 10904(d) for purposes of
DOT.
■ 1. The authority citation for part 1002 negotiations or, in exemption
ACTION: Correcting amendments. proceedings, for purposes of partial
continues to read as follows:
SUMMARY: The Surface Transportation revocation and negotiations.
Authority: 5 U.S.C. 552(a)(4)(A) and 553; (iii) Whether:
Board (Board or STB) published final 31 U.S.C. 9701; and 49 U.S.C. 721. Section
rules in this proceeding on October 15, (A) To impose, modify, or remove
1002.1(g)(11) also issued under 5 U.S.C. 5514
2009, in the Federal Register. The rule environmental or historic preservation
and 31 U.S.C. 3717.
amended STB regulations by conditions; and
■ 2. Revise § 1002.1(f)(1) to read as (B) In abandonment proceedings, to
eliminating the Secretary of the Board
follows: impose public use conditions under 49
and reassigning the delegations of
U.S.C. 10905 and the implementing
authority from the Secretary to other § 1002.1 Fees for records search, review, regulations at 49 CFR 1152.28.
Offices of the Board. As published, the copying, certification, and related services. (iv) In abandonment proceedings,
final regulations contained errors where
* * * * * when a request for interim trail use/rail
information was inadvertently added,
(f) The fee for search and copying banking is filed under 49 CFR 1152.29,
deleted, or duplicated. This document
services requiring computer processing to determine whether the National
sets forth corrections to the final
are as follows: Trails System Act, 16 U.S.C. 1247(d), is
regulations to eliminate confusion in
(1) A fee of $70.00 per hour for applicable and, where appropriate, to
interpretation of the regulations.
professional staff time will be charged issue Certificates of Interim Trail Use or
DATES: Effective on June 2, 2010. Abandonment (in application
when it is required to fulfill a request
FOR FURTHER INFORMATION CONTACT: proceedings) or Notices of Interim Trail
for computer data.
Cynthia T. Brown at (202) 245–0350. Use or Abandonment (in exemption
[Assistance for the hearing impaired is * * * * *
proceedings).
available through the Federal PART 1011—BOARD ORGANIZATION; (v) In any abandonment proceeding
Information Relay Service (FIRS) at 1– DELEGATIONS OF AUTHORITY where interim trail use/rail banking is
800–877–8339.] an issue, to make such findings and

SUPPLEMENTARY INFORMATION: The ■ 3. The authority citation for part 1011 issue decisions as may be necessary for
regulations at 49 CFR 1002.1, 1011.7, continues to read as follows: the orderly administration of the
1152.21, 1152.27, and 1180.4, include National Trails System Act, 16 U.S.C.
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49
erroneous sections that should be U.S.C. 701, 721, 11123, 11124, 11144, 14122, 1247(d).
replaced with the amendments set forth and 15722. (vi) Whether to institute requested
in this document. The Surface declaratory order proceedings under 5
Transportation Board (Board or STB) ■ 4. Revise § 1011.7 to read as follows: U.S.C. 554(e).
(vii) To issue decisions, after 60 days’ necessity under 49 CFR part 1150, § 1152.21 Form of notice.
notice by any person discontinuing a subpart C. The Notice of Intent to abandon or to
subsidy established under 49 U.S.C. (xiv) Whether to waive the regulations discontinue service shall be in the
10904 and at the railroad’s request: at 49 CFR part 1152, subpart C, on following form:
(A) In application proceedings, appropriate petition. STB No. AB lll(Sub-No. lll)
immediately issuing decisions (xv) To reject applications, petitions
authorizing abandonment or Notice of Intent To Abandon or To
for exemption, and verified notices Discontinue Service
discontinuance; and (filed in class exemption proceedings)
(B) In exemption proceedings, (Name of Applicant) gives notice that on or
for noncompliance with the about (insert date application will be filed
immediately vacating the decision that environmental rules at 49 CFR part with the Board) it intends to file with the
postponed the effective date of the 1105. Surface Transportation Board, Washington,
exemption. DC 20423, an application for permission for
(xvi) To reject applications by BNSF
(viii) In proceedings under the Feeder the abandonment of (the discontinuance of
Railway Company to abandon rail lines
Railroad Development Program under service on), a line of railroad known as
in North Dakota exceeding the 350-mile
49 U.S.C. 10907 and the implementing lll extending from railroad milepost near
cap of section 402 of Public Law 97–
regulations at 49 CFR part 1151: (station name) to (the end of line or rail
102, 95 Stat. 1465 (1981), as amended milepost) near (station name), which
(A) Whether to accept or reject
by The Department of Transportation traverses through United States Postal
primary applications under 49 CFR
and Related Agencies Appropriations Service ZIP Codes (ZIP Codes), a distance of
1151.2(b); competing applications under
Act, 1992, Public Law 102–143, section lll miles, in [County(ies), State(s)]. The
section 1151.2(c); and incomplete line includes the stations of (list all stations
343 (Oct. 28, 1991).
applications under 49 CFR 1151.2(d). on the line in order of milepost number,
(B) Whether to grant waivers from (b) Office of Public Assistance,
indicating milepost location). The reason(s)
specific provisions of 49 CFR part 1151. Governmental Affairs, and Compliance. for the proposed abandonment (or
(ix) In exemption proceedings subject The Office of Public Assistance, discontinuance) is (are) lll (explain
to environmental or historic Governmental Affairs, and Compliance briefly and clearly why the proposed action
preservation reporting requirements, to is delegated the authority to: is being undertaken by the applicant). Based
issue a decision, under 49 CFR (1) Reject tariffs and railroad on information in our possession, the line
transportation contract summaries filed (does) (does not) contain federally granted
1105.10(g), making a finding of no
with the Board that violate applicable rights-of-way. Any documentation in the
significant impact where no railroad’s possession will be made available
environmental or historic preservation statutes, rules, or regulations. Any promptly to those requesting it. This line of
issues have been raised by any party or rejection of a tariff or contract summary railroad has appeared on the system diagram
identified by the Board’s Section of may be by letter signed by or for the map or included in the narrative in category
Environmental Analysis. Director, Office of Public Assistance, 1 since (insert date).
(x) Whether to issue notices of Governmental Affairs, and Compliance. The interest of railroad employees will be
exemption under 49 U.S.C. 10502: (2) Issue, on written request, informal protected by (specify the appropriate
(A) For acquisition, lease, and opinions and interpretations on carrier conditions). The application will include the
applicant’s entire case for abandonment (or
operation transactions under 49 U.S.C. tariff provisions, which are not binding
discontinuance) (case in chief). Any
10901 and 10902 and the implementing on the Board. interested person, after the application is
regulations at 49 CFR part 1150, (3) Grant or withhold special tariff filed on (insert date), may file with the
subparts D and E; authority granting relief from the Surface Transportation Board written
(B) For connecting track constructions provisions of 49 CFR part 1312. Any comments concerning the proposed
under 49 U.S.C. 10901 and the grant or withholding of such relief may abandonment (or discontinuance) or protests
implementing regulations at 49 CFR be by letter signed by or for the Director, to it. These filings are due 45 days from the
1150.36; date of filing of the application. All
Office of Public Assistance,
(C) For rail transactions under 49 interested persons should be aware that
Governmental Affairs, and Compliance. following any abandonment of rail service
U.S.C. 11323 and the implementing (4) Resolve any disputes that may and salvage of the line, the line may be
regulations at 49 CFR 1180.2(d); and arise concerning the applicability of suitable for other public use, including
(D) For abandonments and motor common carrier rates under 49 interim trail use. Any request for a public use
discontinuances under 49 U.S.C. 10903 U.S.C. 13710(a)(2). condition under 49 U.S.C. 10905 (§ 1152.28
and the implementing regulations at 49 of the Board’s rules) and any request for a
(5) Issue orders by the Director in an
CFR 1152.50. trail use condition under 16 U.S.C. 1247(d)
emergency under 49 U.S.C. 11123 and (§ 1152.29 of the Board’s rules) must also be
(xi) When an application or a petition
11124 if no Board Member is reasonably filed within 45 days from the date of filing
for exemption for abandonment is filed,
available. of the application. Persons who may oppose
the Director will issue a notice of that
the abandonment or discontinuance but who
filing pursuant to 49 CFR 1152.24(e)(2) PART 1152—ABANDONMENT AND do not wish to participate fully in the process
and 49 CFR 1152.60, respectively. DISCONTINUANCE OF RAIL LINES by appearing at any oral hearings or by
(xii) Whether to issue a notice of AND RAIL TRANSPORTATION UNDER submitting verified statements of witnesses,
exemption under 49 U.S.C. 13541 for a 49 U.S.C. 10903 containing detailed evidence, should file
transaction under 49 U.S.C. 14303 comments. Persons interested only in seeking
within a motor passenger carrier public use or trail use conditions should also
■ 5. The authority citation for part 1152
corporate family that does not result in file comments. Persons opposing the
continues to read as follows: proposed abandonment or discontinuance
adverse changes in service levels,
significant operational changes, or a Authority: 11 U.S.C. 1170; 16 U.S.C. that do wish to participate actively and fully
1247(d) and 1248; 45 U.S.C. 744; and 49 in the process should file a protest. Protests
change in the competitive balance with U.S.C. 701 note (1995) (section 204 of the ICC must contain that party’s entire case in
motor passenger carriers outside the Termination Act of 1995), 721(a), 10502, opposition (case in chief) including the
corporate family. 10903–10905, and 11161. following:
(xiii) Whether to issue rail modified (1) Protestant’s name, address and
certificates of public convenience and ■ 6. Revise § 1152.21 to read as follows: business.
(2) A statement describing protestant’s Section of Administration, Office of ■ 7. Amend § 1152.27 by adding
interest in the proceeding including: Proceedings, Surface Transportation Board, paragraphs (c)(2)(ii)(A), (B), (C), and (D)
(i) A description of protestant’s use of the Washington, DC 20423–0001, no later than to read as follows:
line; (insert the date 45 days after the date
(ii) If protestant does not use the line, applicant intends to file its application). § 1152.27 Financial assistance
information concerning the group or public Interested persons may file a written procedures.
interest it represents; and comment or protest with the Board to become
a party to this abandonment (or
* * * * *
(iii) If protestant’s interest is limited to the
discontinuance) proceeding. A copy of each (c) * * *
retention of service over a portion of the line,
a description of the portion of the line subject written comment or protest shall be served (2) * * *
to protestant’s interest (with milepost upon the representative of the applicant (ii) * * *
designations if available) and evidence (insert name, address, and phone number). (A) An offer may be filed and served
showing that the applicant can operate the The original and 10 copies of all comments at any time after the filing of the notice
portion of the line profitably, including an or protests shall be filed with the Board with of exemption. Once a notice of
appropriate return on its investment for those a certificate of service. Except as otherwise exemption is published in the Federal
operations. set forth in part 1152, each document filed Register, however, the Board must be
(3) Specific reasons why protestant with the Board must be served on all parties notified that an offer has previously
opposes the application including to the abandonment proceeding. 49 CFR been submitted.
information regarding protestant’s reliance 1104.12(a).
The line sought to be abandoned (or
(B) An offer, or notification of a
on the involved service [this information previously filed offer, must be filed and
must be supported by affidavits of persons discontinued) will be available for subsidy or
with personal knowledge of the fact(s)]. sale for continued rail use, if the Board served no later than 30 days after the
(4) Any rebuttal of material submitted by decides to permit the abandonment (or Federal Register publication described
applicant. discontinuance), in accordance with in paragraph (b)(2)(ii) of this section.
In addition, a commenting party or applicable laws and regulations (49 U.S.C. This filing and service is subject to the
protestant may provide a statement of 10904 and 49 CFR 1152.27). No subsidy requirements of 49 CFR 1152.25(d)(1),
position and evidence regarding: arrangement approved under 49 U.S.C. 10904 (d)(2), and (d)(4).
(i) Intent to offer financial assistance shall remain in effect for more than 1 year
unless otherwise mutually agreed by the
(C) If, after a bona fide request,
pursuant to 49 U.S.C. 10904; applicant has failed to provide a
(ii) Environmental impact; parties (49 U.S.C. 10904(f)(4)(B)). Applicant
will promptly provide upon request to each potential offeror promptly with the
(iii) Impact on rural and community information required under paragraph
interested party an estimate of the subsidy
development;
(iv) Recommended provisions for
and minimum purchase price required to (a) of this section and if that information
keep the line in operation. The carrier’s is not contained in the notice of
protection of the interests of employees;
representative to whom inquiries may be exemption, the Board will entertain
(v) Suitability of the properties for other
made concerning sale or subsidy terms is petitions to toll the 30-day period for
public purposes pursuant to 49 U.S.C. 10905;
(insert name and business address). Persons
and seeking further information concerning submitting offers of financial assistance
(vi) Prospective use of the right-of-way for abandonment procedures may contact the under paragraph (c)(2) of this section.
interim trail use and rail banking under 16 Surface Transportation Board or refer to the Petitions must be filed with the Board
U.S.C. 1247(d) and § 1152.29. full abandonment or discontinuance within 25 days after publication in the
A protest may demonstrate that: (1) the regulations at 49 CFR part 1152. Questions Federal Register (as described in
protestant filed a feeder line application concerning environmental issues may be
under 49 U.S.C. 10907; (2) the feeder line
paragraph (b)(2)(ii) of this section).
directed to the Board’s Section of Petitions should include copies of the
application involves any portion of the rail Environmental Analysis.
line involved in the abandonment or prior written request for information or
A copy of the application will be available
discontinuance application; (3) the feeder for public inspection on or after (insert date
an accurate outline of the specific
line application was filed prior to the date abandonment application is to be filed with information that was orally requested.
the abandonment or discontinuance Board) at each agency station or terminal on Replies to these petitions must be filed
application was filed; and (4) the feeder line the line proposed to be abandoned or within 30 days after publication. These
application is pending before the Board. discontinued [if there is no agency station on petitions and replies must be filed on or
Written comments and protests will be the line, the application shall be deposited at before their actual due date under 49
considered by the Board in determining what any agency station through which business
disposition to make of the application. The
CFR 1152.25(d)(4). The Board will issue
for the line is received or forwarded (insert a decision on petitions to toll the offer
commenting party or protestant may name, address, location, and business
participate in the proceeding as its interests hours)]. The carrier shall furnish a copy of
period within 35 days after publication.
may appear. the application to any interested person (D) Upon receipt of a formal
If an oral hearing is desired, the requester proposing to file a protest or comment, upon expression of intent to file an offer
must make a request for an oral hearing and request. under paragraph (c)(2)(i) of this section,
provide reasons why an oral hearing is An environmental assessment (EA) (or the rail carrier applicant may advise the
necessary. Oral hearing requests must be environmental impact statement (EIS), if Board and the potential offeror that
filed with the Board no later than 10 days necessary) prepared by the Section of additional time is needed to develop the
after the application is filed. Environmental Analysis will be served upon information required under paragraph
Those parties filing protests to the all parties of record and upon any agencies
proposed abandonment (or discontinuance) (a) of this section. Applicant shall
or other persons who commented during its
should be prepared to participate actively preparation. Any other persons who would expressly indicate the amount of time it
either in an oral hearing or through the like to obtain a copy of the EA (or EIS) may considers necessary (not to exceed 60
submission of their entire opposition case in contact the Section of Environmental days) to develop and submit the
the form of verified statements and Analysis. EAs in these abandonment required information to the potential
arguments at the time they file a protest. proceedings normally will be made available offeror. For the duration of the time
Parties seeking information concerning the within 33 days of the filing of the period so indicated by the applicant, the
filing of protests should refer to § 1152.25. application. The deadline for submission of 30-day period for submitting offers of
Written comments and protests, including comments on the EA will generally be within financial assistance under paragraph
all requests for public use and trail use 30 days of its service. The comments
conditions, should indicate the proceeding received will be addressed in the Board’s
(c)(2) of this section shall be tolled
designation STB No. AB lll (Sub-No. decision. A supplemental EA or EIS may be without formal Board action.
lll) and must be filed with the Chief, issued where appropriate. * * * * *
PART 1180–RAILROAD ACQUISITION, temporary trackage rights will be effective on DPS. We also provide a variety of
CONTROL, MERGER, (5). The authorization will expire on (6). methods by which take of the Southern
This notice is filed under § 1180.2(d)(8). DPS may be authorized. This document
CONSOLIDATION PROJECT,
Petitions to revoke the exemption under 49 also announces the availability of a final
TRACKAGE RIGHTS, AND LEASE U.S.C. 10502(d) may be filed at any time. The
PROCEDURES filing of a petition to revoke will not stay the
draft environmental assessment (EA)
transaction. that analyzes the environmental impacts
■ 8. The authority citation for part 1180 Dated: of promulgating the 4(d) regulations for
continues to read as follows: By the Board. the Southern DPS.
Authority: 5 U.S.C. 553 and 559; 11 U.S.C. [Insert name] DATES: The effective date of this final
1172; 49 U.S.C. 721, 10502, 11323–11325. Director, Office of Proceedings. rule is July 2, 2010.
The following key identifies the
■ 9. Revise § 1180.4(g)(2)(i) and (g)(2)(ii) ADDRESSES: Reference materials
information symbolized in the summary.
to read as follows: (1) Name of the tenant railroad. regarding this final rule can be obtained
(2) Name of the landlord railroad. via the Internet at http://
§ 1180.4 Procedures. www.swr.nmfs.noaa.gov or by
(3) If an agreement has been entered use
* * * * * ‘‘has agreed,’’ but if an agreement has been submitting a request to the Assistant
(g) * * * reached but not entered use ‘‘will agree.’’ Regional Administrator, Protected
* * * * * (4) Describe the temporary trackage rights. Resources Division, Southwest Region,
(2)(i) To qualify for an exemption (5) State the date the temporary trackage NMFS, 501 West Ocean Blvd., Suite
under § 1180.2(d)(7) (acquisition or rights agreement is proposed to be 4200, Long Beach, CA 90802–4213.
consummated.
renewal of trackage rights agreements), (6) State the date the authorization will FOR FURTHER INFORMATION CONTACT:
in addition to the notice, the railroad expire (not to exceed 1 year from the date the Melissa Neuman, NMFS, Southwest
must file a caption summary suitable for trackage rights will become effective). Region (562) 980–4115, or Lisa
publication in the Federal Register. The Manning, NMFS, Office of Protected
[FR Doc. 2010–13130 Filed 6–1–10; 8:45 am]
caption summary must be in the Resources (301) 713–1401.
following form: SUPPLEMENTARY INFORMATION:
Surface Transportation Board Background
Notice of Exemption DEPARTMENT OF COMMERCE We determined that the Southern DPS
Finance Docket No. is at risk of extinction in the foreseeable
National Oceanic and Atmospheric future throughout all or a significant
(1)—Trackage Rights—(2) Administration portion of its range and listed the
(2) (3) to grant (4) trackage rights to (1) species as threatened under the ESA on
between (5). The trackage rights will be 50 CFR Part 223 April 7, 2006 (71 FR 17757). At that
effective on (6). [Docket No. 070910507–0037–02] time we summarized the process for
This notice is filed under § 1180.2(d)(7). considering the application of ESA
Petitions to revoke the exemption under 49 RIN 0648–AV94
section 9 prohibitions to the threatened
U.S.C. 10502(d) may be filed at any time. The
filing of a petition to revoke will not stay the Endangered and Threatened Wildlife Southern DPS. In the case of threatened
transaction. and Plants: Final Rulemaking To species, ESA section 4(d) states that the
Dated: Establish Take Prohibitions for the Secretary shall decide whether, and to
By the Board. Threatened Southern Distinct what extent, to extend the ESA section
[Insert name],
Population Segment of North American 9(a) prohibitions, including those
Director, Office of Proceedings. regarding take of the species, and
The following key identifies the Green Sturgeon
authorizes us to issue regulations we
information symbolized in the summary. AGENCY: National Marine Fisheries consider necessary and advisable for the
(1) Name of the tenant railroad.
Service (NMFS), National Oceanic and conservation of the species. Such
(2) Name of the landlord railroad.
(3) If an agreement has been entered use Atmospheric Administration (NOAA), regulations may include any or all of the
‘‘has agreed’’, but if an agreement has been Commerce. prohibitions that automatically apply to
reached but not entered use ‘‘will agree.’’ ACTION: Final rule and notice of endangered species. Those prohibitions,
(4) Indicate whether ‘‘overhead’’ or ‘‘local’’ availability of a final environmental in part, make it illegal for any person
trackage rights are involved. assessment. subject to the jurisdiction of the United
(5) Describe the trackage rights. States to take the listed species. The
(6) State the date the trackage rights SUMMARY: This final ESA section 4(d) term ‘‘take’’ means to harass, harm,
agreement is proposed to be consummated. rule represents the regulations that we, pursue, hunt, shoot, wound, kill, trap,
(ii) To qualify for an exemption under the National Marine Fisheries Service capture, or collect, or attempt to engage
§ 1180.2(d)(8) (acquisition of temporary (NMFS), believe necessary and in any such conduct. (16 U.S.C.
trackage rights), in addition to the advisable to conserve the threatened 1532(19)). The term ‘‘harm’’ is defined as
notice, the railroad must file a caption Southern Distinct Population Segment any act which actually kills or injures
summary suitable for publication in the of North American green sturgeon fish or wildlife. Such an act may
Federal Register. The caption summary (Acipenser medirostris; hereafter include significant habitat modification
must be in the following form: Southern DPS). We apply the or degradation which actually kills or
prohibitions listed under ESA section 9 injures fish or wildlife by significantly

Surface Transportation Board for the Southern DPS, and we highlight impairing essential behavioral patterns,
Notice of Exemption specific categories of activities that are including breeding, spawning, rearing,
likely to result in take of Southern DPS migrating, feeding, or sheltering. (50
STB Finance Docket No.
fish. We do not find it necessary and CFR 222.102).
(1)—Temporary Trackage Rights—(2) advisable to apply the take prohibitions Whether take prohibitions or other
(2) (3) to grant overhead temporary to certain categories of activities that protective regulations are necessary or
trackage rights to (1) between (4). The contribute to conserving the Southern advisable is in large part dependent on
the biological status of the species and Summary of Comments and threat to only juvenile green sturgeon
potential impacts of various activities Information Received in Response to and wanted NMFS to acknowledge that
on the species. Green sturgeon have the Proposed Rule and Draft adult Southern DPS fish have the
persisted for millions of years through Environmental Assessment potential to be found in dredging areas
cycles of naturally occurring The public comment period for the outside the Central Valley, San
perturbations that have likely presented proposed rule and draft Environmental Francisco Bay, Suisun Bay and San
short- and long-term challenges to the Assessment (EA) was open from May Pablo Bay.
species’ survival. We conclude that the 21, 2009, through July 6, 2009. During Response: The final rule was revised
threatened Southern DPS of North the comment period, NMFS received 7 to acknowledge that dredging is a
American green sturgeon is currently at written comments on the proposed rule potential threat to adult green sturgeon.
risk of extinction primarily because of and draft EA from various agencies, Dredging occurs in the following areas
human-induced ‘‘takes’’ involving non-governmental organizations, and where adults also occur: The Lower
elimination of freshwater spawning individuals. A summary of the Sacramento River, Sacramento-San
habitat, degradation of freshwater and comments and NMFS’ responses to Joaquin Delta, Elkhorn Slough, Suisun
estuarine habitat quality, water those comments are presented here. Bay, San Pablo Bay, San Francisco Bay,
diversions, fishing, and other causes. Noyo Harbor, and Humboldt Bay in
Therefore, we conclude that extending Comments and Responses California; Coos Bay, Yaquina Bay,
the take prohibitions to the Southern Comment 1: One commenter Tillamook Bay, and Nehalem Bay in
DPS is necessary and advisable. requested clarification in the draft EA Oregon; the Lower Columbia River
When the final rule to list the regarding the exception for emergency Estuary, the Lower Columbia River,
Southern DPS was published on April 7, fish rescue activities under Alternative Willapa Bay, Grays Harbor, and Puget
2006, we solicited the public for B. Specifically, the commenter was Sound in Washington; and coastal U.S.
information that would inform the ESA unclear what 4(d) programs were marine waters (74 FR 52300, October 9,
section 4(d) rulemaking. Specific referred to in the sentence stating that 2009). Although adults occur in areas
information requested can be found in ‘‘[p]roject-related activities * * * would where dredging takes place, we don’t
the final rule (71 FR 17757; April 7, not be considered an emergency fish have any direct evidence of the effect
2006). No substantive additional rescue activity and would be subject to that dredging has on adult green
comments, beyond those that had been review under ESA section 7 or 10, or sturgeon.
received during prior solicitations for under another 4(d) program.’’ Comment 4: One commenter asked
information, were received. Response: We corrected the sentence why the draft EA specifically excludes
Public scoping workshops held on in the final EA to read ‘‘Project-related the Channel Islands from the list of
May 31 and June 1, 2006, helped activities * * * would not be areas known to be occupied by Southern
advance our understanding of the considered an emergency fish rescue DPS green sturgeon, noting that this
threats that are likely to result in the activity and would be subject to review exclusion was not mentioned in the
take of Southern DPS fish. In cases under ESA section 7 or 10.’’ We proposed critical habitat designation for
where evidence of direct take due to a removed the phrase ‘‘or under another the species (73 FR 52084, September 8,
particular activity was lacking, activities 4(d) program’’ because the ESA 4(d) 2008).
that have caused take of species that use Rule does not include a 4(d) program to Response: At this time we do not have
similar habitats (i.e., migratory, cover such project-related activities. any data showing that Southern DPS
spawning, and rearing), consume Comment 2: One commenter stated green sturgeon occur in waters around
similar prey types, have similar that the draft EA needs to describe the the California Channel Islands and we
morphologies and/or physiologies, and/ specific categories of activities to which specifically noted this in the description
or share other life history requirements the take prohibitions would be applied of occupied areas in the draft EA.
(e.g., white sturgeon (Acipenser under Alternative C. However, the protections under the ESA
transmontanus) and Chinook salmon Response: The final EA was revised to 4(d) rule would apply to Southern DPS
(Oncorhynchus tshawytscha)) were clarify that under Alternative C, the take green sturgeon wherever they are found.
identified and considered for their prohibitions would apply to the same Thus, if a Southern DPS green sturgeon
effects on Southern DPS fish. More specific categories of activities and in occurred in the waters around the
detailed justification regarding the use the same areas as described under Channel Islands, the take prohibitions
of take information for surrogate species Alternative A. Those categories of under the ESA 4(d) rule would apply to
(i.e., one that shares a similar life history activities are: Commercial, recreational, that fish. Because of similarity of
or habitat requirements) to infer the take and tribal fisheries; collecting or appearance, any green sturgeon
potential of an activity on the Southern handling Southern DPS fish for any occurring in the marine environment
DPS fish is provided in previous purpose; habitat-altering activities (including estuaries in Washington,
Federal Register notices (70 FR 17386, affecting passage or spawning and Oregon, and Humboldt Bay) would be
April 6, 2005; 71 FR 17757, April 7, rearing habitat in the Central Valley, considered the listed species as they
2006). California; operation of water diversion, cannot be identified as belonging to a
On May 21, 2009, we proposed dredging, and power plant activities particular DPS unless genetic samples
protective regulations under section 4(d) resulting in entrainment or are taken and analyzed. The final EA
of the ESA to extend the prohibitions impingement of Southern DPS fish; was revised to include a statement
listed under ESA sections 9(a)(1)(A) application or discharge of pollutants clarifying this.
through 9(a)(1)(G) for the threatened adjacent to or within waterways Comment 5: Two commenters felt that
Southern DPS, but included certain occupied by Southern DPS fish; and the five alternative approaches need to
exceptions and exemptions from the introduction or release of non-native be described in greater detail and that
take prohibitions for activities that we species adjacent to or within waterways the geographic limitations and
have determined to be adequately occupied by Southern DPS fish. distinctions of the proposed rule and
protective of the Southern DPS (74 FR Comment 3: One commenter felt that alternatives are not clearly laid out.
23822). the proposed rule listed dredging as a Further clarification was requested.
Response: The final EA was revised to Response: NMFS appreciates the Comment 12: One commenter stated
more clearly describe the geographic information provided regarding green that the green sturgeon fishery was
limitations and distinctions between the sturgeon vulnerability to selenium mismanaged and that more care should
various alternatives considered. toxicity. Recent studies have shown that have been taken to prevent the fishery
Comment 6: One commenter green sturgeon are more sensitive to from becoming overfished.
recommended that NMFS consult with selenium than white sturgeon and Response: NMFS acknowledges that a
the Pacific Fishery Management Council continued monitoring of selenium levels lack of monitoring and directed
(PFMC) as early in the process as in sediments and research on the management of the green sturgeon has
possible concerning the effects of the sensitivity of green sturgeon to this and likely contributed to its current
ESA 4(d) Rule on fisheries managed other contaminants would be supported threatened status. However, since the
under the PFMC. (Kaufman et al., 2008). listing, academic institutions, the states,
Response: NMFS is currently working Comment 9: One commenter felt that NMFS and the tribes have been
with the PFMC regarding the potential including marine coastal waters as green conducting more comprehensive studies
effects of the West Coast groundfish sturgeon critical habitat is unjustified as that focus on green sturgeon in an effort
bottom trawl fishery on the listed there is no reliable data on the take of to better understand its biology, status
Southern DPS of green sturgeon and its the Southern DPS in coastal waters. and recovery needs. It is our hope that
designated critical habitat. Response: Comments pertaining to finalizing this 4(d) rule and enforcing
Comment 7: One commenter stated critical habitat were addressed in the the take prohibitions will further the
that the San Francisco Bay is not used final critical habitat designation for conservation of the species and aid in
green sturgeon (74 FR 52300, October 9, its recovery.
as habitat for green sturgeon and that
2009). Activities that occur in coastal Comment 13: One commenter
regulating take and requiring
marine waters that may cause take of provided the information that there is a
consultation on activities that are not
green sturgeon include bottom trawling, new surge in the green sturgeon
limiting the recovery of the Southern
disposal of dredged material, population in Yaquina Bay, and feels
DPS diverts staff resources from other
hydrokinetic projects and pollution that listing green sturgeon as threatened
permitting actions that would have
from commercial shipping. in this area is inaccurate and
positive effects. Comment 10: One commenter stated unfounded.
Response: The best available data for that sand mining operations in San Response: NMFS appreciates the
the San Francisco Bay indicate that Francisco and Suisun Bays are highly information provided regarding
green sturgeon are present in both regulated and there is very little observations of green sturgeon in
Central and South San Francisco Bay, evidence that sand mining in the San Yaquina Bay and agrees that additional
albeit in low numbers compared to Francisco Bay-Delta Estuary negatively studies are needed to better understand
other parts of the San Francisco Bay/ impacts green sturgeon or their habitat. the use of coastal estuaries (including
Delta Region. The survey methods and The commenter requested that Yaquina Bay) and coastal marine waters
sampling gear used in studies within additional exceptions be included for by both DPSs of green sturgeon.
San Francisco Bay were not designed to activities such as sand mining that pose Southern DPS presence in Yaquina Bay
target green sturgeon, and thus the data a low risk of take. was confirmed in 2006 by the detection
may not be truly representative of the Response: In 2006, NMFS completed of one tagged Southern DPS green
relative levels of green sturgeon use formal consultation with the U.S. Corps sturgeon (pers. comm. with Dan
among the bays and the Delta. For of Engineers under section 7 of the ESA Erickson, ODFW, September 3, 2008).
example, given that all green sturgeon for sand mining activities in the San The Southern DPS was listed based on
must pass through Central San Francisco and Suisun Bay region. The several threats, including the
Francisco Bay in their migrations to and resulting biological opinion concluded concentration of spawning to one river.
from the ocean, it is expected that larger that sand mining activities were not Each Southern DPS green sturgeon
numbers of green sturgeon are using this likely to jeopardize threatened green carries the listing with it wherever it
area at certain times of the year. In sturgeon (NMFS, 2006). An Incidental goes as the listing is not limited by
addition, the catch data do not provide Take Statement (that remains geographic area. We acknowledge the
information about the distribution of discretionary until a 4(d) rule has been commenter’s observations suggesting
juvenile green sturgeon throughout the promulgated) was included with the that the number of green sturgeon using
bays and the Delta. Based on the best biological opinion that provides Yaquina Bay has increased. While this
available information, juvenile green protection to the sand miners for the news is promising: (1) We recognize that
sturgeon are believed to distribute entrainment of one green sturgeon per green sturgeon may experience sporadic
widely throughout the bays and Delta year for each of the three sand mining recruitment success depending on many
for feeding and rearing and be present companies operating in the region at the factors that are not well understood; and
in all months of the year. Detailed time the biological opinion was written. (2) this uncertainty coupled with a lack
fishery-dependent data for the San Comment 11: One commenter stated of population abundance estimates and
Francisco Bay is provided in the final that we do not have data to differentiate a limited understanding of population
critical habitat designation (74 FR between Northern DPS and Southern structure has led us to adopt regulations
52300, October 9, 2009). DPS green sturgeon in fisheries bycatch, necessary and advisable for the
Comment 8: One commenter strongly but we require a Fisheries Management conservation of the Southern DPS. We
supports the 4(d) rule and provided the and Evaluation Plan (FMEP) to include will conduct periodic status reviews of
information that green sturgeon are measures specifically to protect both DPSs and as more information
vulnerable to selenium toxicity from Southern DPS green sturgeon. becomes available we will revise our
feeding on the overbite clam. The Response: Acknowledging the fact regulations if necessary.
commenter stated that selenium toxicity that we cannot tell the difference Comment 14: One commenter felt that
can cause reproductive failure and the between NDPS and SDPS fish due to the requirement that research or
threat of reduced recruitment through similarity of appearance, the FMEPs monitoring that involves action,
selenium toxicity puts additional stress must address green sturgeon and do not permitting or funding by a Federal
on the Southern DPS population. require that the DPS be determined. agency must still comply with the
requirements of ESA section 7(a)(2) green sturgeon. The commenter covered under section 7 or 10 of the
negates the exception from the take recommended that NMFS provide ESA, or come under compliance with
prohibitions for all researchers and exceptions from the take prohibitions the exceptions criteria.
stated that Federal employees who can for navigation channel and harbor Comment 18: One commenter
fulfill all other requirements cannot use berths dredging, dredged material requested clarification in the draft EA
this exception. If non-Federal studies do placement, mineral extraction and regarding which states’ recreational
not need to be analyzed in order to maintenance and installation of in-water fishing regulations, prior to 2006, did
ensure that they would not jeopardize and shoreline structures. The not differentiate between white sturgeon
the species, then it seems commenter also recommended that and green sturgeon.
counterintuitive that Federal studies exceptions for the small business Response: The final EA was revised to
with the same requirements would category of construction activities be clarify that, prior to 2006, state
create jeopardy. The commenter also felt considered. recreational fishing regulations in
that the requirement that the activity Response: NMFS acknowledges that Washington, Oregon, and California did
must comply with required state many of the activities that may cause not differentiate between white sturgeon
reviews or permits negates the take of green sturgeon are already and green sturgeon.
exception because as part of the regulated by existing Federal, state and Comment 19: One commenter
application process, state permits local laws and regulations, and suggested updating the 2005 reference
require a copy of the authorization from appreciates any efforts that have been for the Environmental Water Account
NMFS when working with species listed made to protect and improve habitats because the program expired in 2007
under the ESA. where green sturgeon reside. However, and a revised program is currently in
Response: Under the 4(d) Rule, we these laws, regulations, and programs place with adjusted water amounts to
can exempt a non-Federal entity from may not specifically address green augment instream flows.
the take prohibitions, but cannot exempt sturgeon and may not be as protective Response: The final EA was updated
Federal agencies from the jeopardy of green sturgeon as the 4(d) Rule. For to remove the outdated reference for the
standard under section 7 of the ESA. example, there is a 50-year dredging Environmental Water Account.
Compliance with section 7(a)(2) of the program in the San Francisco Bay region Spatial Context for ESA 4(d) Rule
ESA would be required, but the that currently has not implemented Application
consultation would be limited to an measures that would specifically protect
analysis of whether the activity may green sturgeon. Construction activities As described in a Federal Register
jeopardize the continued existence of conducted by small businesses may also notice (68 FR 4433) published on
the species or destroy or adversely not include measures that would be January 23, 2003, we determined that
modify critical habitat, and would not adequately protective of green sturgeon. based on genetic and behavioral
involve an assessment of take. Section 7 However, any protections already information, North American green
of the ESA does not apply to non- afforded to green sturgeon through sturgeon is comprised of at least two
Federal entities. Although Federal existing programs would be considered DPSs that qualify as species under the
employees are still subject to the section in NMFS’ analyses under section 7 or ESA: (1) A northern DPS consisting of
7 jeopardy standard, under the section 10 of the ESA. populations originating from coastal
exception they would not be required to Comment 16: One commenter watersheds northward of and including
obtain an ESA section 10(a)(1)(A) permit requested that a public hearing be held the Eel River (‘‘Northern DPS’’); and (2)
for their research/monitoring activities in coastal Oregon prior to publishing the a southern DPS consisting of
if conducted according to the exception final rule. populations originating from coastal
criteria. The Federal biologists carrying Response: A workshop to discuss the watersheds south of the Eel River
out research activities would need to ESA 4(d) rule prohibitions and (‘‘Southern DPS’’) and the Central Valley
obtain state permits regardless of exceptions/exemptions with state of California. These geographic
whether Federal take prohibitions are in fishery management agencies, NMFS, boundaries were largely defined by
place or not. The exception simplifies and representatives from the fishing genetic evidence indicating that, among
the NMFS review and approval process industry was held in Newport, Oregon samples from rivers where green
for research activities and relies on the on March 15, 2010. sturgeon are known to spawn (i.e., the
state review and permits to minimize Comment 17: One commenter Rogue, Klamath, and Sacramento
impacts related to the research requested clarification on the rivers), the Rogue and Klamath River
activities. In the state application, Protection/Conservation Measures or fish were more similar to one another
applicants will need to identify that Benefits under Table 1, as emergency than to the Sacramento River fish (Israel
their activities meet the exception rescue and habitat restoration indicates et al., 2004). Although the Southern DPS
criteria and will need to indicate that that there are no benefits provided to boundaries are defined by the species’
they have submitted the information to green sturgeon in these activities. genetic structure and its likely strong
NMFS or indicate that NMFS has Response: The Note section under homing capabilities and spawning site
confirmed that their activities meet the Table 1 was clarified to state that the fidelity, the spatial extent of the ESA
exception criteria. ‘‘Protective/conservation measures or listing and take prohibitions for the
Comment 15: One commenter felt that benefits’’ column refers to whether the Southern DPS is not confined to areas
NMFS has not taken into account the activity, as it is currently conducted, south of the Eel River. Detailed
extent of the existing regulatory includes protections or benefits to green information on occurrences of the
programs and improvement to the sturgeon. Emergency rescue activities Southern DPS green sturgeon is
health of the San Francisco Bay-Delta and habitat restoration activities that are provided in the proposed 4(d) rule (74
ecosystem that has taken place over the not conducted according to the criteria FR 23822, May 21, 2009).
last 30 years and stated that certain under the exceptions do not provide Sections 10(a)(1)(A) and 10(a)(1)(B)
activities are already regulated under benefits to green sturgeon and are provide exceptions to the section 9 take
other Federal, state and local programs therefore not covered under the prohibitions. NMFS can authorize
that directly govern activities that exceptions. If these activities may cause research and enhancement through
NMFS stated could result in the take of take of green sturgeon, that take must be section 10(a)(1)(A) permits and
incidental take through section factors in the decline of the species (70 overall effect the closures will have on
10(a)(1)B) permits. While this rule FR 17386, April 6, 2005; 71 FR 17757, the Southern DPS.
applies the section 9 take prohibitions April 7, 2006). For example, from 1985 Commercial groundfish trawl fisheries
to any activity that takes the Southern to 1993, the harvest of green sturgeon in occurring in coastal waters along the
DPS, we wanted to determine which commercial fisheries in the Columbia West Coast of North America take green
activities would most likely impede River and in Washington ranged from sturgeon. Fish are primarily caught as
efforts necessary to conserve and 3,000 to over 7,500 fish per year. Sport bycatch off the coast of California. Over
recover the Southern DPS. To do this, fishing harvest during the same period a 6-year period, from 2001–2007, 450
we considered the following questions: ranged from less than 100 to over 500 green sturgeon were reported as by-
(1) For which activities do we have fish, with the majority harvested from catch in trawls off the California coast.
evidence of take of Southern DPS fish; the Columbia River. Since 1993, Almost all green sturgeon caught in this
(2) for those activities where evidence of commercial and sport harvest of green fishery are released alive (J. Majewski,
Southern DPS take does not exist, is sturgeon has declined in the Columbia NMFS, 2006, unpublished data), but the
there evidence of take of surrogate long-term fate of these individuals
River and Washington fisheries to about
species that share similar biological remains unknown. A program for
150 fish harvested in 2003 (Adams et al.
requirements with Southern DPS fish; monitoring green sturgeon take was
2006).
(3) are protective/conservation measures established with the NMFS Observer
underway to reduce or minimize take State recreational and commercial Program in January 2007 to determine
imposed by some activities; and (4) are fishing regulations have been revised in the amount of take, the DPS of the green
there additional protective/conservation response to evidence of recent sturgeon sturgeon that are caught (through
measures that, if taken, would reduce declines and to the listing of the genetic analysis), and in the future to
take to low enough levels such that Southern DPS. In California, the address the long-term fate of these
particular activities could proceed California Fish and Game Commission individuals through tagging. Additional
without appreciably reducing the approved revised regulations, effective measures that may be implemented to
likelihood of survival and recovery of March 1, 2007, to prohibit retention of protect green sturgeon and the Southern
the Southern DPS? green sturgeon, alter the slot (size) limit DPS include zero retention of green
(142 cm) and bag limit (one individual sturgeon in all fisheries, minimizing
Commercial and Recreational Fisheries incidental catch, monitoring of
Activities daily; 3 individuals annually) for white
sturgeon, and require implementation of incidental catch, increased enforcement,
Take of Southern DPS fish occurs a sturgeon report card system. Recently, fisheries closures in areas important to
during commercial and recreational the California Fish and Game the species, and outreach and education
fishing activities throughout the range of Commission approved revised on proper catch and release methods
North American green sturgeon. regulations, effective March 1, 2010, and green sturgeon conservation issues.
However, quantifying fishery-related that prohibit all sturgeon fishing in the
take reliably and assessing its effects is Tribal Fisheries
upper Sacramento River where southern
challenging because: (1) Northern and Green sturgeon are taken as bycatch in
DPS green sturgeon spawn. The
Southern DPS fish are morphologically tribal salmon and sturgeon fisheries
Washington Fish and Wildlife
indistinguishable from one another and conducted by the Quinault Tribe in
Commission adopted a permanent rule
when green sturgeon have been taken, coastal Washington waters. Tribal
to prohibit retention of green sturgeon
they have rarely been identified to the harvest of green sturgeon occurs in
in recreational fisheries statewide Grays Harbor and at the mouth of
DPS level; (2) until recently some
effective May 1, 2007. In addition, the tributaries, primarily the Chehalis and
fisheries did not report green sturgeon
Washington Department of Fish and Humptulips rivers. The number of green
take; and (3) in cases where data on take
Wildlife and Oregon Department of Fish sturgeon taken annually from 1985 to
of green sturgeon is available, methods
for estimating the total annual take by and Wildlife voted to prohibit the 2003 ranged from less than 10 to almost
a fishery are still being developed. The retention of green sturgeon in Columbia 200 fish (Adams et al., 2006). In 2006,
two DPSs co-inhabit some coastal areas River recreational fisheries from the Quinault Tribe implemented zero
and bays in Northern California, Bonneville Dam to the mouth of the retention of green sturgeon for the Grays
Oregon, and Washington, and the river, effective January 1, 2007. For Harbor fishery (J. Schumacker, Quinault
proportion of Southern DPS fish commercial fisheries, the retention of Indian Tribe, 2006, personal
contributing to overall populations in green sturgeon has been prohibited in communication). A large proportion of
these areas may be high (e.g., 80 percent the Columbia River by emergency rule green sturgeon caught in Grays Harbor
in the Columbia River; J. Israel, UC since July 2006 and statewide in may be Southern DPS fish, based on
Davis, 2008, unpublished data). Thus, Washington by permanent rule since hydroacoustic tracking information
while we know that fisheries-related January 26, 2007. The Oregon Fish and (Lindley and Moser, 2006) and a genetic
take is occurring, we are uncertain how Wildlife Commission voted to prohibit study indicating that approximately 50
this take is apportioned between the two the retention of green sturgeon in percent of green sturgeon sampled in
DPSs, different locales, and different commercial nearshore fisheries, Grays Harbor belong to the Southern
types of fisheries. effective January 1, 2010, and is DPS (J. Israel and B. May, UC Davis,
Green sturgeon are taken as bycatch in prohibiting the retention of green 2006, unpublished data).
white sturgeon fisheries, salmon gillnet sturgeon in recreational fisheries Green sturgeon are also taken, though
fisheries, coastal groundfish trawl statewide, effective April 1, 2010. The rarely, in tribal commercial and
fisheries, and coastal California halibut State of California has prohibited subsistence salmon fisheries occurring
set net fisheries (Adams et al., 2006; R. commercial fishing for sturgeon since in freshwater and coastal marine waters
Rasmussen, NMFS, 2006, unpublished 1917. While these emergency and of Washington, including the Strait of
data; J. Ferdinand et al., NMFS, 2006, permanent rules offer Southern DPS fish Juan de Fuca, Georgia and Rosario
unpublished data). These fisheries have protection, it is unclear whether the straits, and Puget Sound (W. Beattie,
taken large numbers of green sturgeon state closures will remain in effect over NW Indian Fisheries Commission, 2008,
historically and have been cited as the long-term and ultimately what personal communication). The Yurok
and Hoopa Tribes harvest green information (e.g., genetic, pathologic, the protection and restoration of
sturgeon in the Klamath River in taxonomic, meristic) is also gathered spawning and rearing habitat along the
California, but most of the fish are from already dead individuals, thereby Sacramento River, bays, and the
believed to be Northern DPS green providing valuable data without putting Sacramento-San Joaquin Delta.
sturgeon (J. Israel, UC Davis, 2006, the species at further risk. However, when the gates are raised,
unpublished data). Overall, the take of green sturgeon may become disoriented
Emergency Rescue and Salvage
green sturgeon in tribal fisheries has or suffer injuries due to the high
Activities
been low compared to non-tribal velocity of water passing under the gates
fisheries. Measures that may be Emergency fish rescue activities, (M. Tucker, NMFS, 2007, personal
implemented to conserve the Southern including aiding sick, injured, or communication). Between May 18 and
DPS include a commitment by the stranded fish, disposing of dead fish, or June 10, 2007, carcasses of 10 adult
Quinault Tribe, and perhaps other salvaging dead fish for use in scientific Southern DPS fish (168–226 cm total
Tribes within the occupied range of the studies, are forms of take. Rescue length) were found at (n=2) or
Southern DPS, to minimize take and activities would benefit the Southern downstream (n=8) of RBDD (E.
monitor incidental catch of green DPS in the event of emergency Campbell, USFWS, 2007, unpublished
sturgeon over the long-term. situations that result from natural data). Locations of the retrieved
disasters, man-made habitat alterations, carcasses and necropsy results suggest
Poaching national defense activities, security that the fish suffered mortality due to
Poaching is a potential threat to the emergencies, etc. Allowing take of the injuries inflicted by the gates at RBDD.
Southern DPS. In recent years, several Southern DPS for emergency rescue and Installation of adequate fish passage
arrests have been made for illegal salvage activities is likely to enhance facilities, modification of existing
harvest of white sturgeon for their meat survival and recovery of the listed passage facilities, or other provisions to
and roe from the Sacramento River species. However, it is important that specifically aid sturgeon passage at
(CDFG, 2003 and 2006), the Sacramento- measures be taken to investigate dams and diversions, and application of
San Joaquin Delta (CDFG, 2004), and the emergency events during or after they other mitigation measures, such as
lower Columbia River (Cohen, 1997). In have occurred in order to determine salvage operations, would contribute to
the lower Columbia River, an estimated whether a non-ESA-compliant action(s) the protection of the Southern DPS.
2,000 sturgeon were killed over a 5-year necessitated the rescue or salvage. The elimination, obstruction, or delay
period by poachers to produce caviar of downstream passage is a concern for
Habitat-Altering Activities
(Cohen, 1997). Poaching may be less larval and juvenile stages of the
significant than incidental take Dams and water diversion structures Southern DPS, as are habitat-altering
associated with white sturgeon have caused the elimination, activities that destroy, modify, or curtail
sportfishing (Williamson, 2003). obstruction, or delay of passage for spawning or rearing habitats for egg,
However, the tendency for green green sturgeon and other sturgeon larval, or juvenile stages. Specific
sturgeon to form aggregations for long species and may reduce body condition concerns include, but are not limited to:
periods of time may make them easy and reproductive success. For example, Increased sediment input or runoff into
targets for poachers (Erickson et al., dams and water diversion structures streams; filling in or isolation of stream
2002). Increased public outreach and have been observed to obstruct or channels, side channels, and
awareness, increased enforcement, and disrupt the upstream spawning intermittent waters; direct removal or
heavier sentences and fines for poachers migrations of shortnose sturgeon in the alteration of physical structures; and
may help to protect green sturgeon from lower Cape Fear River, NC (Moser and obstruction of downstream migration.
the threats of poaching. Ross, 1995). White sturgeon have also Increased input or runoff of fine
been found stranded behind the sediments into streams may result from
Research and Monitoring Activities Fremont Weir in the Yolo Bypass, CA a number of activities including, but not
Scientific research and monitoring of (Harrell and Sommer, 2006). limited to, mining, logging, farming,
the Southern DPS contributes valuable Disruptions in migration may cause fish grazing, and bridge and road
information for the management, to stop their upstream migration or may construction. Increased erosion and
conservation, and future status reviews delay access to spawning habitats sediment input or runoff into streams
of the species. However, collection or (Moser and Ross, 1995). The inability to caused by land use and other human
handling associated with scientific reach spawning habitats may cause fish activities have been found to reduce the
research and monitoring constitutes take to spawn in habitats of lower quality, survival and successful development of
and may result in stress, injuries, or resulting in decreased recruitment eggs and embryos of salmon and other
mortality of Southern DPS fish. In (Cooke and Leach, 2004). Several dams fish species (Scrivener and Brownlee,
recent years, much research and and water diversion structures exist 1989; Owen et al., 2005). The effects on
monitoring effort has been placed on: (1) along the spawning migration route of green sturgeon eggs and embryos are
Tracking the movements and habitat use the Southern DPS and would be likely to be similar. Green sturgeon eggs
of Southern DPS fish by using a variety expected to have detrimental effects are large and dense and likely sink into
of non-lethal tagging techniques; and (2) similar to those observed in surrogate rock crevices or attach to hard surfaces
identifying the DPS of origin using non- species. Fish passage studies at the Red (Deng et al., 2002; Kynard et al., 2005).
lethal genetic sampling techniques. Bluff Diversion Dam (RBDD) in the Once hatched, green sturgeon embryos
These two research and monitoring Sacramento River show that the RBDD remain near the bottom and use rocks as
activities provide information crucial to blocks the upstream migration of the cover (Kynard et al., 2005). Excess fine
the development of an effective recovery Southern DPS when the gates are sediments can compromise successful
strategy for the species. The best lowered between May 15 and September development by burying already-
available information indicates that 15 (Heublein et al., 2006; Brown, 2007). deposited eggs, reducing interstitial
these procedures, when done according Mitigation measures have been dissolved oxygen available for eggs
to accepted protocols, result in minimal implemented, including the raising of (Scrivener and Brownlee, 1989), or
short-term stress to the fish and do not RBDD gates from September 15 to June filling areas used by embryos for cover.
result in lethal take. Important scientific 15 each year to allow fish passage and Thus, Southern DPS eggs or embryos
may be taken due to habitat-altering structure during the winter (Kynard et barrier removal or modification to
activities that increase input of fine al., 2005). Removal or alteration of these restore natural water flows, river and
sediments or runoff into spawning or physical structures (i.e. cobble for estuarine bed restoration, natural bank
rearing habitat. The effect that increased spawning and egg development; flat protection, restoration of native
input of fine sediments or runoff has at rock for larval rearing; deep pool vegetation, removal of non-native
the individual, population and species habitats with rock structure for juvenile species, and removal of contaminated
levels will depend on the temporal and rearing) may reduce spawning or rearing sediments has been used to reestablish
spatial extent of habitat change. The success rates. Additional studies natural river and estuarine functions
only way to determine this is to analyze regarding the use of spawning habitats over the long-term. Although take of
particular activities on a case-by-case by Southern DPS early life stages and green sturgeon could potentially occur
basis. the effects of removing or altering during the course of completing
The filling in or isolation of stream physical components of Southern DPS restoration activities, we do not have
channels, side channels, and spawning habitat on recruitment evidence that these types of activities
intermittent waters may destroy or block success are encouraged. have taken the Southern DPS or a
access to rearing habitats, or impede or The construction and maintenance of surrogate species. It is likely that these
delay downstream migration by dams and water diversion structures activities are important to the
trapping larvae and juveniles that have may impede or delay downstream conservation and recovery of the
entered these areas. Activities that fill in migration and alter habitats important to Southern DPS.
or isolate waters include, but are not larval and juvenile stages of the
limited to, the installation of tide gates, Southern DPS. Dams and water Entrainment and Impingement Risks
culverts, and debris- or sediment- diversions may block downstream The operation of water diversions,
trapping road crossing structures. These migration of larvae and juveniles, unless power generating projects, and dredging
activities and their effects are a concern fish transport or bypass facilities exist. activities pose entrainment and
for listed salmon and steelhead and may Passage across dams and water impingement threats to all life stages of
also affect larval and juvenile Southern diversion structures may also disorient the Southern DPS. We define
DPS fish. However, we currently lack or injure larvae and juveniles and make entrainment to mean the incidental
the information needed to quantitatively them more vulnerable to predation, as trapping of any life stage of fish within
assess these effects. Although relatively has been observed for juvenile waterways or structures that carry water
large numbers of juveniles have been salmonids at RBDD (Bigelow and being diverted for anthropogenic use.
collected in shallow areas of the Santa Johnson, 1996; Gaines and Martin, We define impingement to mean the
Clara shoal in the Sacramento-San 2002). The actual construction of dams entrapment of any life stage of fish on
Joaquin Delta (Radtke, 1966), the use of and water diversion structures may the outer part of any structure (e.g.,
stream channels, side channels, and cause increased erosion and intake structures, screening devices)
intermittent waters as rearing habitat by sedimentation and disrupt or alter that separates water traveling a natural
green sturgeon larvae and juveniles has physical structures in spawning or course of passage from water that is
not been documented. Information rearing habitats, with effects as being diverted for anthropogenic use.
regarding the use of these habitats by described in the previous paragraphs. Unscreened water diversions number in
early life stages of green sturgeon is While existing laws require mining, the hundreds to thousands in the
needed. timber harvest, and other resource use Sacramento River and the Sacramento-
Direct removal or alteration of plans to address erosion and other San Joaquin Delta (Herren and
physical structures essential to the adverse impacts on stream habitats, Kawasaki, 2001). Factors that determine
integrity and function of the Southern these laws may not be adequate to the entrainment risk of fish at diversions
DPS’s spawning or rearing habitat, protect the Southern DPS. Additional include the location and size of fish. A
including rocks, soil, gravel, and measures that would help reduce study of fish entrainment at an
vegetation, may adversely affect the potential adverse impacts on Southern unscreened diversion in the Sacramento
growth and survival of larvae and DPS fish are: (1) Protection of riparian River documented entrainment of fish
juveniles. Green sturgeon likely use habitat by limiting activities that cause ranging in size from 9 to 59 mm fork
specific substrate types at different life erosion, sediment input or runoff into length (FL) in July 2000 and 2001
stages, but observations of early life streams, or roadway and other linear (Nobriga et al., 2004). Green sturgeon
stages of green sturgeon in the field are development near or across streams; (2) were not among the species documented
lacking. Studies suggest that spawning construction of fish protection and in the study, but Southern DPS larvae
most likely occurs over cobble passage facilities; and (3) limiting the and small juveniles within the size
substrates that provide crevices and temporal and/or spatial scopes of range of 9–59 mm FL occur in the
cover for eggs (Kynard et al., 2005; habitat alteration activities that occur in Sacramento River at that time of year
Nguyen and Crocker, 2006). However, in and near spawning and rearing and are believed to also be at risk of
a laboratory study of substrate use by locations. entrainment at unscreened diversions.
post-hatch larval green sturgeon, growth Entrainment of juvenile green sturgeon
and survival was greatest in flat slate- Habitat Restoration has been documented at the state and
rock substrates that provided cover and The primary purpose of habitat Federal fish facilities in the south
sufficient foraging opportunities restoration is to restore natural aquatic Sacramento-San Joaquin Delta, where
(Nguyen and Crocker, 2006). Survival or riparian habitat conditions or fish are salvaged before they enter the
was low in cobble substrates, because processes over the long-term. pumps (Adams et al., 2006). Programs to
larvae became trapped in crevices and Specifically, we define habitat install fish screens at water diversions
died; whereas in sand substrates, the restoration as the process of are being implemented and many major
cause of lower survival and growth was reestablishing a self-sustaining habitat diversions have already been screened.
attributed to the ingestion of sand that closely resembles natural Installation of fish screens, construction
particles similar in size to food particles conditions in terms of structure and of bypass and other fish protection
(Nguyen and Crocker, 2006). Juveniles function for the Southern DPS. A variety facilities (Bigelow and Johnson, 1996;
likely use deep pool habitats with rock of habitat-altering activities such as Gaines and Martin, 2002), adjustments
in the timing of operations, and 2002; Jahn, 2006; BDAT, 2009). irrigated agriculture and agricultural
continuation of fish salvage operations, However, the use of specific types of stormwater runoff. Furthermore, the
where applicable, would help minimize dredging equipment with modified national standards for use of pesticides
and mitigate entrainment of Southern designs would reduce the entrainment and toxic substances may not be
DPS fish at water diversions. risk to Southern DPS fish from dredging conservative enough to adequately
Evidence exists for the impingement operations. protect the Southern DPS as was found
of green sturgeon in the operation of for listed salmonids in recent draft and
coastal power plants using cooling Pesticides and Discharge of Pollutants
final jeopardy biological opinions
water intake systems, and there is a The application of pesticides adjacent issued by NMFS to the EPA (NMFS
possibility that green sturgeon are also to or within waterways that contain any 1998, NMFS 2000, NMFS 2008). Thus,
entrained at power plants. Two juvenile life stage of the Southern DPS may programs to aid agricultural producers
green sturgeon were impinged and died adversely affect their growth and in meeting NMFS-imposed water
on cooling water intake screens at the reproductive success. Several pesticides quality standards may be required to
now retired Contra Costa Plant Units 1– have been detected in the Sacramento minimize adverse impacts on the
5 in 1978–1979 and at the Moss Landing River Basin at levels that are likely to be Southern DPS.
Power Plant in 2006 (C. Raifsnider and harmful to aquatic life (Domagalski et
J. Steinbeck, Tenera Environmental, al., 2000). The accumulation of Non-Native Species Introductions
2006, personal communication). Current industrial chemicals and pesticides Non-native species are a continuing
conservation efforts include the such as polychlorinated biphenyls problem in freshwater rivers and coastal
installation of screens to reduce (PCBs), dichloro-diphenyl- bays and estuaries and may affect the
entrainment, studies of fish trichloroethanes (DDTs), and chlordanes Southern DPS through trophic
impingement and entrainment at power in white sturgeon gonad, liver, and interactions. Introduced species, such as
plants, and laws that require the muscle tissues affects growth and striped bass in the Sacramento River
minimization of fish impingement and reproductive development and results and the Sacramento-San Joaquin Delta,
entrainment. Other actions that can be in lower reproductive success (Fairey et may prey on green sturgeon juveniles.
taken to reduce impingement and al., 1997; Foster et al., 2001a; Foster et Non-native species may also replace
entrainment include altering the time of al., 2001b; Kruse and Scarnecchia, 2002; prey species of green sturgeon and
day when water intake pumps are Feist et al., 2005; Greenfield et al., result in greater bioaccumulation of
operated, altering the velocity of water 2005). Green sturgeon are believed to contaminants. For example,
intake, and the use of alternative cooling experience similar risks from Potamocorbula amurensis, a non-native
systems that do not require water intake. contaminants, although their exposure bivalve, has become widespread in the
Dredging operations in freshwater may be reduced because a greater San Francisco Bay and the Sacramento-
rivers, bays, and estuaries where proportion of their subadult and adult San Joaquin Delta and has replaced
Southern DPS fish occur may pose lives are spent in marine waters (70 FR other common prey items for white
entrainment risk. Although entrainment 17386, April 6, 2005). Pesticides may sturgeon. P. amurensis is an efficient
of green sturgeon in dredging operations also indirectly affect green sturgeon bioaccumulator of selenium, a
has not been documented, the effects through effects on their prey species. reproductive toxin that causes
could be significant. Approximately For example, green sturgeon are deformities in embryos and reduced
2,000 juvenile white sturgeon were believed to enter Willapa Bay to feed on hatchability of eggs, and has been linked
entrained during operation of a large burrowing ghost shrimp (Neotrypaea with increased selenium levels in white
suction dredge in the lower Columbia californiensis), which have declined in sturgeon (Linville et al., 2002). P.
River (Buell, 1992). Juvenile green abundance due to the deliberate amurensis has also been identified in
sturgeon would be expected to face application of carbaryl (Moser and the gut contents of at least one green
similar entrainment risks from dredging Lindley, 2006). sturgeon (CDFG, 2002). Non-native
operations because they are also bottom- The discharge or dumping of toxic species may also alter the Southern
oriented and occur in habitats similar to chemicals or other pollutants into DPS’ habitat or compete with the
white sturgeon. Dredging may also be a waters and areas where Southern DPS Southern DPS for space or food.
potential threat to adult green sturgeon fish occur would be expected to reduce Although existing laws prohibit the
because they occur in areas where their growth and reproductive success. release of non-native species into the
dredging operations take place. Pollutants including mercury, selenium, environment, accidental and intentional
Dredging stirs up the sediments causing and arsenic have been detected in white introduction of non-native species
the release of contaminants that would sturgeon gonad, liver, and muscle remains a problem. Eradication
have adverse impacts on growth, tissues and are believed to affect growth, programs for non-native species,
reproductive development, and reproductive development, and increased public education and
reproductive success of green sturgeon. reproductive success (Fairey et al., outreach, and increased fines or
Long-term management strategies for 1997; Davis et al., 2002; Kruse and penalties for the release of non-native
San Francisco Bay dredging operations Scarnecchia, 2002; Greenfield et al., species would help to alleviate this
have established regional environmental 2005; Webb et al., 2006). Again, the problem.
work windows, or periods of time when effects on green sturgeon are likely to be
certain fish species are not likely to be similar. 4(d) Protective Regulations for the
present in a location. Currently, it is Under the Federal Clean Water Act, Southern DPS
believed that Southern DPS juveniles acceptable levels for contaminants in We apply the prohibitions listed
reside in San Francisco, Suisun, and waterways have been established by the under ESA sections 9(a)(1)(A) through
San Pablo bays year-round so States and the U.S. Environmental 9(a)(1)(G) for the Southern DPS,
environmental work windows will Protection Agency (EPA). Entities must including all the ESA section 9(a)(1)(B)
likely not be effective in reducing the also obtain National Pollutant Discharge and 9(a)(1)(C) prohibitions (the ‘‘take
risks of dredging operations to the Elimination System (NPDES) permits to prohibitions’’) except for specific
Southern DPS in these locations discharge contaminants. However, activities described below (see
(Ganssle, 1966; Miller, 1972; CDFG, NPDES permits are not required for Exceptions, Criteria for Exceptions, and
Reporting Requirements). ESA section conclusion at any time. For any of the a summary of the study design and
9(a)(1)(A) states that it is unlawful to exceptions to the take prohibitions methodology, estimates of the total non-
import or export endangered species described below, we would evaluate on lethal take of Southern DPS fish
into or from the United States; ESA a regular basis the effectiveness of the anticipated, estimates of incidental take
section 9(a)(1)(B) states that it is illegal activities in conserving and protecting of other ESA listed species anticipated
to take endangered species within the the Southern DPS. If the activities are and proof that those takes have been
United States or the territorial sea of the not effective in conserving and authorized by NMFS or the USFWS,
United States; ESA section 9(a)(1)(C) protecting the Southern DPS, we would identification of funding sources, and a
states that it is illegal to take endangered identify ways in which the activities point of contact must be reported to the
species upon the high seas; ESA section need to be altered or strengthened. For NMFS Southwest Regional Office (see
9(a)(1)(D) states that it is illegal to habitat-related exceptions to the take ADDRESSES: above) at least 60 days prior
possess, sell, deliver, carry, transport, or prohibitions, changes may be required if to the start of the study, or, for ongoing
ship, by any means whatsoever, the activities are not achieving desired studies, by August 31, 2010; (h) reports
endangered species taken in violation of habitat functionality or the habitat is not that include the total number of
9(a)(1)(B) and 9(a)(1)(C); ESA section supporting population productivity Southern DPS and any other ESA listed
9(a)(1)(E) states that it is illegal to levels needed to conserve the Southern species taken, information that supports
deliver, receive, carry, transport, or ship DPS. If the agency or entity carrying out that take was non-lethal, and a summary
in interstate or foreign commerce by any the activity does not make changes to of the project results must be submitted
means whatsoever and in the course of respond adequately to the new to NMFS on a schedule to be
a commercial activity, endangered information, we would publish determined by NMFS staff; (i) research
species; ESA section 9(a)(1)(F) states notification in the Federal Register or monitoring that involves action,
that it is illegal to sell or offer for sale announcing the intention to impose take permitting, or funding by a Federal
in interstate or foreign commerce, prohibitions on those activities. Such an agency must still comply with the
endangered species; and ESA section announcement would provide for a requirements of ESA section 7(a)(2) in
9(a)(1)(G) states that it is illegal to comment period of not less than 30 order to ensure that the action will not
violate any regulation pertaining to days, after which we would make a final jeopardize the continued existence of
endangered species or to any threatened determination whether to extend the the threatened Southern DPS. NMFS
species of fish or wildlife listed ESA section 9(a)(1)(B) and (C) take will respond in a letter either
pursuant to section 4 of the ESA and prohibitions to the activities. If the confirming the activities meet the
promulgated by the Secretary pursuant activities do not meet the exception exception criteria or stating that the
to authority provided by the ESA. criteria any take must be covered under activities do not meet the exception
These prohibitions are necessary and an ESA section 7 incidental take criteria and are subject to the take
advisable for the conservation of the statement (i.e. for activities with a prohibitions. The letter would
Southern DPS because human ‘‘take’’ via Federal nexus) or ESA section acknowledge receipt of the project
activities including, but not limited to, 10(a)(1)(B) incidental take permit. The information and provide the schedule
detrimental habitat alteration, take of the Southern DPS will not be for submission of research/progress
modification, and curtailment; fisheries prohibited during the course of the reports and technical assistance to
catch and bycatch; application of following activities: clarify when the ESA section 9
pesticides, toxic chemicals, or other prohibitions apply.
pollutants adjacent to or within (1) Federal, state, or private-sponsored (2) Emergency fish rescue and salvage
waterways; entrainment or impingement research or monitoring activities if they activities that include aiding sick,
of eggs or fish during water diversion adhere to all of the following: (a) The injured, or stranded fish, disposing of
operations, dredging, or power activity must comply with required state dead fish, or salvaging dead fish for use
generation; unnecessary collection or reviews or permits; (b) the research or in scientific studies, if they adhere to all
handling; and introduction of non- monitoring activity must be directed at of the following: (a) The activity must
native species that disrupt trophic the Southern DPS and not be incidental comply with required state or other
pathways, has contributed to the decline to research or monitoring of another Federal reviews or permits; (b) activities
of the Southern DPS and is likely to species; (c) take of live mature adults in may only be conducted by an employee
impede its conservation and recovery. the lower Feather River from the or designee of NMFS or the U.S. Fish
Evaluation of activities that may occur confluence with the Sacramento River and Wildlife Service (USFWS), any
throughout the area affected by the to the Oroville Dam (rkm 116), the lower Federal land management agency, or
prohibitions for Southern DPS fish, eggs Yuba River from the confluence with California Department of Fish and Game
or larvae is shown in Table 1. the Feather River to the Daguerre Dam (CDFG), Oregon Department of Fish and
(rkm 19), or Suisun, San Pablo, and San Wildlife (ODFW), Washington
Exceptions, Criteria for Exceptions, and Francisco Bays or the Sacramento-San Department of Fish and Wildlife
Reporting Requirements Joaquin Delta from the Golden Gate (WDFW), or Alaska Department of Fish
We establish exceptions to the ESA Bridge up into the Sacramento River to and Game (ADFG); (c) the emergency
section 9(a)(1)(B) and 9(a)(1)(C) Keswick Dam (rkm 483) may only occur rescue must benefit the Southern DPS;
prohibitions (the ‘‘take prohibitions’’) for from July 1 through March 1 so as to (d) a report must be submitted to the
specific activities. These exceptions substantially increase the likelihood NMFS Southwest Regional Office (see
encompass specific activities that may that uninterrupted upstream spawning ADDRESSES: above) that includes, at a
be excluded from the take prohibitions migrations of adults will occur; (d) take minimum, the number and status of fish
for the Southern DPS through the must be non-lethal; (e) take involving handled, the location of rescue and/or
relatively informal coordination process the removal of any life stage of the salvage operations and the potential
described below. In determining that it Southern DPS from the wild must not cause(s) of the emergency situation
is necessary and advisable to not impose exceed 60 minutes; (f) take must not within 10 business days after carrying
take prohibitions on certain activities, involve artificial spawning or out the rescue.
we are mindful that new information enhancement activities; (g) a description (3) Habitat restoration activities,
may require a reevaluation of that of the study objectives and justification, including barrier removal or
modification to restore water flows, Exemptions Provided by NMFS- received by the NMFS Southwest
riverine or estuarine bed restoration, approved ESA 4(d) Programs Regional Office (see ADDRESSES: above)
natural bank stabilization, restoration of We provide exemptions from the take by July 2, 2010. The exemption will be
native vegetation, removal of non-native prohibitions for certain activities suspended if the letter of intent is
species, or removal of contaminated included within a NMFS-approved 4(d) rejected without further review of an
sediments, that reestablish self- program. Activities included in a 4(d) FMEP. If the letter of intent is received
sustaining habitats for the Southern program would be excused from the July 2, 2010, a draft FMEP must be
DPS, if they adhere to all of the take prohibitions for the Southern DPS received by NMFS within 6 months
following: (a) Compliance with required through a formal NMFS 4(d) program from the date of receipt of the letter of
state and Federal reviews and permits; approval process described below. intent. A final FMEP must be received
(b) a detailed description of the by NMFS within 3 months from the date
restoration activity sent to the NMFS 4(d) Program for Commercial and of receipt of NMFS’ comments on the
Southwest Regional Office (see Recreational Fishery Management draft FMEP. Ongoing commercial and
ADDRESSES: above) at least 60 days prior Take of green sturgeon in commercial recreational fisheries activities may
to the start of the restoration project, or, and recreational fisheries activities continue until NMFS issues a letter of
for ongoing studies, by August 31, 2010, would be allowed if fisheries activities concurrence (or denial) for final FMEPs.
Once a final FMEP has been
which includes: the geographic area were conducted under approved
submitted to NMFS for review, NMFS
affected; when activities will occur; how Fisheries Management and Evaluation
will: (1) Provide a public comment
they will be conducted; and the severity Plans (FMEPs). We expect that, in many
period (≥30 days) before approval of
of direct, indirect, and cumulative cases, fisheries will have acceptably
new or amended FMEPs; (2) provide a
impacts of activities on the Southern small impacts on the threatened
letter of concurrence for approved
DPS; identification of funding sources; Southern DPS as long as state fishery
FMEPs that specifies the
demonstration that all state and Federal management programs are specifically
implementation and reporting
regulatory requirements have been met; tailored to meet certain criteria. NMFS-
requirements; (3) evaluate FMEPs every
a description of methods used to ensure approved FMEPs must address limiting
5 years and identify changes that would
that the likelihood of survival or take of green sturgeon in order to protect improve their effectiveness; and (4)
recovery of the listed species is not the listed entity, the Southern DPS. We provide a public comment period (≥30
reduced; a plan for minimizing and consider this necessary because days) before withdrawing approval of an
mitigating any adverse impacts to discrimination between the non-listed FMEP.
Southern DPS spawning or rearing Northern DPS and listed Southern DPS,
via gear specificity, visual indicators, 4(d) Program for Tribal Fishery
habitat; an estimate of the amount of
spatial distribution, etc., is not currently Management
incidental take of the listed species that
may occur and a description of how that possible. In order for NMFS to exempt Fishery harvest or other activities
estimate was made; a plan for effective commercial or recreational fishing conducted by a tribe, tribal member,
activities from the take prohibitions, an tribal permittee, tribal employee, or
monitoring and adaptive management; a
FMEP must: (1) Prohibit retention of tribal agent in Willapa Bay, WA, Grays
pledge to use best available science and
green sturgeon (i.e., zero bag limit); (2) Harbor, WA, Coos Bay, OR, Winchester
technology when conducting restoration
set maximum incidental take levels; (3) Bay, OR, Humboldt Bay, CA, and any
activities; and a point of contact; (c)
include measures to minimize other area where tribal treaty fishing
progress reports that include the total
incidental take of green sturgeon (e.g., occurs are eligible to obtain take
number of Southern DPS fish taken, temporal/spatial restrictions, size, gear);
information regarding whether the take authorization via the same method
(4) provide a biologically based outlined in the NMFS final rule for
was lethal or non-lethal, a summary of rationale demonstrating that the authorizing take of threatened salmon
the status of the project, and any incidental take management strategy and steelhead for actions under tribal
changes in the methods being will not significantly reduce the resource management plans (July 10,
employed, must be submitted to NMFS likelihood of survival or recovery of the 2000; 65 FR 42481). This method has
on a schedule to be determined by Southern DPS; (5) include effective been modified below for the Southern
NMFS staff; (d) activities that involve monitoring and evaluation plans; (6) DPS. We consider current tribal fishing
action, permitting, or funding by a provide for evaluating monitoring data activities to have acceptably small
Federal agency must still comply with and making revisions to the FMEP; (7) impacts on the threatened Southern
the requirements of ESA section 7(a)(2) provide for effective enforcement and DPS, and if the tribes, either singly or
in order to ensure that the action will education; (8) provide a timeframe for jointly, develop tribal resource
not jeopardize the continued existence FMEP implementation; and (9) report management plans for the Southern
of the threatened Southern DPS. NMFS the amount of incidental take and DPS, or incorporate the Southern DPS
will respond in a letter either summarize the effectiveness of the into existing tribal resource
confirming the activities meet the FMEP to NMFS on a biannual basis. If management plans, that current and
exception criteria and are not subject to we find that an FMEP meets these future tribal activities are not likely to
the take prohibitions, or stating that the criteria, we will issue a letter of appreciably reduce the likelihood of
activities do not meet the exception concurrence to the entity that sets forth survival and recovery of the species.
criteria and are subject to the take the terms of the FMEP’s implementation A tribe intending to exercise a tribal
prohibitions and any take must be and the duties of the parties pursuant to right to fish or undertake other resource
covered under an ESA section 7 the FMEP. management actions that may impact
incidental take statement or ESA section Section 9(a)(1)(B) and (a)(1)(C) take the threatened Southern DPS could
10 permit. The letter would also provide prohibitions would not apply to ongoing create a tribal resource management
the schedule for submission of progress commercial and recreational fisheries plan (Tribal Plan) that would assure that
reports and would provide technical activities until September 30, 2010 if a those actions would not appreciably
assistance to clarify when the ESA letter of intent to develop an FMEP reduce the likelihood of survival and
section 9 prohibitions apply. addressing green sturgeon has been recovery of the species. Tribal Plans
should be sent to the NMFS Southwest habitat, and provide critical information covered within the 4(d) research
Regional Office (see ADDRESSES). NMFS for assessing the effectiveness of current program are exempt from the ESA take
would stand ready to the maximum and future management practices. prohibitions. A section 10(a)(1)(A)
extent practicable to provide technical State 4(d) research programs have research or enhancement permit is not
assistance to any tribe that so requests been developed and implemented in issued. Researchers have to comply with
in examining impacts on the listed California, Oregon, and Washington for the conditions of the 4(d) research
Southern DPS and in the development listed West coast salmon and steelhead program and must submit an annual
of Tribal Plans that meet tribal and are consistent with ESA report, preferably through the NMFS
management responsibilities and needs. requirements for research-related take of online application Web site
In making a determination whether a these listed species. The Southern DPS Authorizations and Permits for
Tribal Plan will appreciably reduce the would most likely be incorporated into Protected Species (APPS) at https://
likelihood of survival and recovery of the existing state 4(d) research programs apps.nmfs.noaa.gov. The annual report
the threatened Southern DPS, the established for listed salmon and must include, for each project: (1) a
Secretary, in consultation with the tribe, steelhead, making use of the system summary of the number of green
would use the best available scientific already in place. Otherwise, the state sturgeon taken directly or incidentally;
and commercial data (including careful would be required to prepare a program and (2) a summary of the results of the
consideration of any tribal data and and submit it to the NMFS Southwest project, in order for NMFS to evaluate
analysis) to determine the Tribal Plan’s Regional Office (see ADDRESSES: above) the effects of the research project on the
impact on the biological requirements of for approval. NMFS may approve the Southern DPS. We would continue to
the species. The Secretary would also program or return the program to the work with the state fishery agencies to
assess the effect of the Tribal Plan on state agency for revision. ensure authorized research involving
survival and recovery in a manner In general, we conclude that as long listed Southern DPS fish is both
consistent with tribal rights and trust as state biologists and cooperating coordinated and conducted in a manner
responsibilities. Before making a final agencies carefully consider the benefits that does not jeopardize the
determination, the Secretary would seek and risks of activities included in a state conservation and recovery of the
comment from the public on his 4(d) research program, such programs Southern DPS.
pending determination whether would help streamline the take Section 9(a)(1)(B) and 9(a)(1)(C) take
implementation of a Tribal Plan will authorization process for researchers, prohibitions would not apply to ongoing
appreciably reduce the likelihood of state agencies, and NMFS by allowing state-supported scientific research and
survival and recovery of the listed state fishery agencies to maintain enhancement activities seeking take
Southern DPS. The Secretary would primary responsibility for coordination authorization of the Southern DPS fish
publish notification in the Federal and oversight of research activities. through a state 4(d) program, if the
Register of any determination regarding Each year, researchers would be above information is provided to NMFS,
a Tribal Plan and the basis for that required to submit research applications preferably through the NMFS online
determination. to the state fishery agency preferably application Web site Authorizations and
through the NMFS online application Permits for Protected Species (APPS) at
4(d) Program for Scientific Research and Web site Authorizations and Permits for https://apps.nmfs.noaa.gov, during the
Monitoring Activities Protected Species (APPS) at https:// mid-September through mid-October
State-coordinated research activities apps.nmfs.noaa.gov. Research 2010 application period. The take
for scientific research or enhancement applications must include, at a prohibitions would take effect if the
purposes that do not fall into the minimum, the following information: (1) state 4(d) program package is rejected as
exception category described above (see An estimate of the total direct or insufficient or is denied. If the state 4(d)
Exceptions, Criteria for Exceptions, and incidental take of Southern DPS fish research program package is received
Reporting Requirements) may receive an that is anticipated; (2) a description of during the mid-September to mid-
exemption from the take prohibitions the study design and methodology; (3) October application period, ongoing
for the Southern DPS for activities a justification for take of Southern DPS state-supported scientific research
included in a state-sponsored, ESA- fish and the techniques to be used; and activities may continue until NMFS
compliant, scientific research program (4) a point of contact. The state agency issues a written decision of approval or
between state fishery agencies (i.e., would have access, via NMFS, to the denial. If approved, the state 4(d)
CDFG, ODFW, WDFW, or ADFG) and submitted applications, evaluate and program authorization will cover one
NMFS, hereafter referred to as a state determine which projects are eligible for calendar year and state supported
4(d) research program. Activities inclusion under the program, and researchers would have to renew
conducted as part of a state 4(d) approve or deny individual project authorizations annually during
research program must meet existing applications. Once the state agency subsequent application periods.
state and Federal laws and regulations review is complete, the state agency
and would include research and would be required to provide for NMFS’ Take Exemptions Provided By ESA
monitoring projects conducted by state review and approval a list of project Sections 7 or 10
employees or by recipients of state applications approved for possible Federally funded, authorized, or
fishery agency-issued permits inclusion in a 4(d) research program for implemented activities that may require
(including Federal and non-Federal the coming year. After our review of the take coverage (see Proposed 4(d)
entities) that directly or incidentally applications and follow-ups with the Protective Regulations for the Southern
take Southern DPS green sturgeon. We researchers to address concerns if DPS), and are not covered under
find that in carrying out their necessary, we would analyze effects of Exceptions, Criteria for Exceptions, and
responsibilities to manage state the activities on the Southern DPS. Reporting Requirements or Exemptions
fisheries, state agencies conduct or Finally, we would complete the ESA Provided by NMFS-approved 4(d)
sponsor research vital for improving our section 7 consultation and NEPA Programs above, will be examined on a
understanding of the status and risks documentation and issue an approval case-by-case basis through interagency
facing the Southern DPS and other letter to the state fishery agency consultation as prescribed by ESA
listed species that occur in overlapping confirming that the research activities section 7. All other activities (i.e., those
not federally funded, authorized, or November 29, 2010. The take cannot be authorized is indicated, and
implemented) that may require take prohibitions would take effect if the whether methods for allowing take
coverage, and are not covered under permit application is rejected as resulting from a particular activity exist
Exceptions, Criteria for Exceptions, and insufficient or a permit is denied. If the through ESA sections 7 or 10 or through
Reporting Requirements or Exemptions permit application is received by an ESA section 4(d) Program is
Provided by NMFS-approved 4(d) November 29, 2010, ongoing research specified. This is not an exhaustive list
Programs above, will be examined on a activities may continue without take of all activities that occur throughout
case-by-case basis as prescribed by ESA prohibitions until NMFS issues or the area affected by the take
section 10. denies a permit. prohibitions. Please see 4(d) Protective
Federal, state, and private-sponsored Evaluation of activities that may occur Regulations for the Southern DPS for the
research activities for scientific research throughout the area affected by the full range of activities for which NMFS
or enhancement purposes that are not prohibitions for Southern DPS fish, is prohibiting take.
covered under Exceptions, Criteria for eggs, or larvae is shown in Table 1.
Exceptions, and Reporting Evidence of take of the Southern DPS Table 1. This table indicates whether
Requirements or Exemptions Provided during the course of an activity is evidence of take of the Southern DPS or
by NMFS-approved 4(d) Programs indicated; if there is no such evidence, take of a surrogate species exist (yes or
above, may take Southern DPS fish then evidence of take of a surrogate no; Y or N) and whether protective/
pursuant to the specifications of an ESA species is indicated. Existence of conservation measures to minimize take
section 10 permit. Section 9(a)(1)(B) and protective/conservation measures to are currently in place (Y or N). The table
(a)(1)(C) take prohibitions would not minimize take of or benefit the Southern also indicates whether under this rule
apply to ongoing research activities if an DPS fish during the course of the an activity requires take authorization
application for an ESA section 10 activity as it is currently conducted is (Y or N), or cannot be authorized (N/A),
(a)(1)(A) permit is received by NMFS, indicated. Based on best available and whether methods that allow take
preferably through the NMFS online information, whether an activity exist through ESA sections 7 or 10 (Y or
application Web site https:// requires take authorization or is illegal N) or through an ESA section 4(d)
apps.nmfs.noaa.gov, no later than according to other laws and therefore program (Y or N)
Protective/ Methods of take authorization

Take of Take
Conservation
Activity Take surrogate spe- authorization
measures or ESA section 7
cies necessary 4(d) Program
benefits or 10
Fishing
Commercial ....................................... Y Y Y Y Y
Recreational ...................................... Y Y Y Y Y
Tribal ................................................. Y Y Y Y Y
Poaching .................................................. N Y N N/A N N
Collection or Handling
Research/monitoring
Federal, State or Private-spon-
sored (compliant with Excep-
tions) ...................................... Y Y N
State-sponsored (outside scope
of Exceptions) ........................ Y Y Y Y Y
Federal or Private-sponsored
(outside scope of Exceptions) Y Y Y Y N
Emergency Rescue (compliant with
Exceptions) .................................... N Y Y N
Emergency Rescue (outside scope
of Exceptions) ............................... N Y N Y Y N
Detrimental Habitat-Altering Activities
Activities that Eliminate, Obstruct, or
Delay Passage
Dam installation, repair, modi-
fication, operation ................... Y Y Y Y N
Diversion installation, repair,
modification, operation ........... Y Y Y Y N
Activities that Destroy, Modify, or
Curtail Spawning or Rearing Habi-
tat
Input of fine sediments/runoff .... N Y Y Y Y N
Dam installation, repair, modi-
fication, operation ................... Y Y Y Y N
Diversion installation, repair,
modification, operation ........... Y Y Y Y N
Filling/isolation of channels/
intermittent waters .................. N N Y Y Y N
Removal/alteration of physical
structure that provides spawn-
ing/rearing habitat .................. N N Y Y Y N
Habitat Restoration (compliant with Ex-
ceptions)
Barrier removal/modification to re-
store flows ..................................... N N Y N
Protective/ Methods of take authorization

Take of Take
Conservation
Activity Take surrogate spe- authorization
measures or ESA section 7
cies necessary 4(d) Program
benefits or 10
Riverine or estuarine bed restoration N N Y N

Natural bank protection .................... N N Y N
Restoration of native vegetation ....... N N Y N
Removal of non-native species ........ N N Y N
Removal of contaminated sediments N N Y N
Habitat Restoration (outside scope of Ex-
ceptions) ............................................... N N N Y Y N
Entrainment/Impingement
Water diversions ............................... Y Y Y Y N
Power generating projects ................ Y Y Y Y N
Dredging ........................................... N Y Y Y Y N
Pesticide/Pollutant Discharge .................. N Y Y Y Y N
Non-native Species Introductions ............ N Y Y N/A N N
Under section 9(b)(1) of the ESA, authorized, or implemented, take Bulletin provides agencies broad
people holding Southern DPS fish in authorization may be obtained through discretion in determining the
captivity or in a controlled environment ESA section 10, by establishing a appropriate process and level of peer
prior to the ESA listing are exempt from NMFS-approved 4(d) program (i.e., for review. The Peer Review Bulletin
the prohibitions of section 9(a)(1)(A) commercial or recreational fishing establishes stricter standards for the
and (a)(1)(G) of the ESA and would activities or state-sponsored research peer review of ‘‘highly influential’’
therefore also be exempt from the outside the scope of those activities scientific assessments, defined as
prohibitions of this regulation, provided defined in Exceptions, Criteria for information whose ‘‘dissemination
that holding and any subsequent Exceptions, and Reporting could have a potential impact of more
holding or use of the fish is not for Requirements) that adequately protects than $500 million in any one year on
commercial activity. The burden of the Southern DPS, or by developing a either the public or private sector or that
proof that Southern DPS fish were taken tribal resource management plan that the dissemination is novel,
prior to listing lies with the individual will not appreciably reduce the controversial, or precedent-setting, or
holding the animals. The prohibitions of likelihood of survival and recovery of has significant interagency interest.’’ We
this regulation would, however, apply the Southern DPS (see Exemptions do not consider the scientific
to any progeny of Southern DPS fish Provided by NMFS-approved ESA 4(d) information underlying the protective
taken prior to listing. Any activity Programs). Take of the Southern DPS regulations to constitute influential
involving Southern DPS fish taken pre- due to poaching and non-native species scientific information as defined in the
listing that is authorized, funded, or introductions is illegal according to Peer Review Bulletin. The information
carried out by a Federal agency would existing state and/or Federal laws, thus is not novel; similar information for
also be subject to the consultation no method of take authorization is being listed salmonids whose range
requirements of section 7 of the ESA. provided for these activities. substantially overlaps with that of the
We apply the section 9 take Southern DPS has been used in support
prohibitions to the Southern DPS, while Peer Review
of protective regulations that have been
providing exceptions for some activities In December 2004, the Office of in existence for a number of years.
(i.e., some types of research/monitoring, Management and Budget (OMB) issued Therefore the agency expects the
enforcement, emergency rescue/salvage, a Final Information Quality Bulletin for information to be non-controversial and
and habitat restoration; see Exceptions, Peer Review (Peer Review Bulletin) have minimal impacts on important
Criteria for Exceptions, and Reporting establishing minimum peer review public policies or private sector
Requirements) that NMFS finds will not standards, a transparent process for decisions.
impede, and in most cases will promote, public disclosure, and opportunities for
the conservation of the species. public input. The Peer Review Bulletin, References
However, if the activity is federally implemented under the Information A complete list of the references used
funded, authorized, or implemented, it Quality Act (Pub. L. 106 554), is in this final rule is available upon
will still be subject to NMFS’ review intended to provide public oversight on request (see ADDRESSES) or via the
under the ESA jeopardy standard (i.e., the quality of agency information, Internet at http://www.swr.noaa.gov.
ESA section 7(a)(2)). Apart from the analyses, and regulatory activities. The
subset of activities defined in text of the Peer Review Bulletin was Classification
‘‘Exceptions, Criteria for Exceptions, and published in the Federal Register on Regulatory Flexibility Act
Reporting Requirements’’ above, if the January 14, 2005 (70 FR 2664). The Peer
Southern DPS is anticipated to be taken Review Bulletin requires Federal This final ESA 4(d) rule has specific
during the course of an activity, several agencies to subject ‘‘influential’’ requirements for regulatory compliance
methods may be pursued to obtain take scientific information to peer review and sets an enforceable performance
authorization depending on the specific prior to public dissemination. standard (do not take listed fish) when
circumstances of the activity. For Influential scientific information is conducting specific activities unless
federally funded, authorized, or defined as ‘‘information the agency those activities are within a carefully
implemented activities, the traditional reasonably can determine will have or circumscribed set of activities on which
method of seeking take coverage is does have a clear and substantial impact NMFS will not impose the take
through ESA section 7. For activities on important public policies or private prohibitions. Hence, the universe of
that are not federally funded, sector decisions,’’ and the Peer Review entities reasonably expected to be
directly or indirectly impacted by the that NMFS has determined to be governments within the range of this
prohibition is broad. adequately protective of the Southern DPS. Accordingly, the requirements of
Based on the language of the 4(d) rule, DPS; and (5) Alternative C where the section 5(b) and (c) of E.O. 13175 may
as well as a review of existing section ESA section 9(a)(1) prohibitions are apply to this rule. During the
7 consultations for the Southern DPS of applied as described in Alternative A, development of the proposed and final
green sturgeon and co-existing salmon but with exceptions from the take rules, we provided drafts of relevant
and steelhead species, the FRFA prohibitions (ESA section 9(a)(1)(B) and sections of the 4(d) Rule to potentially
identified the following activities that 9(a)(1)(C)) for activities that NMFS has affected tribes and held conference calls
may be affected by this final rule: determined to be adequately protective with potentially affected tribes to
commercial, recreational and tribal of the Southern DPS. discuss the 4(d) Rule and obtain the
fisheries; dams and water diversions; The comparative analysis of the tribes’ input.
power production (electric services and alternatives is described in more detail
gas distribution); crop agriculture and in the FRFA. In summary, the Full E.O. 13132—Federalism
point source polluters (NPDES- Action Alternative and Alternative B E.O. 13132 requires agencies to take
permitted activities); habitat-altering (Proposed Action) are anticipated to into account any federalism impacts of
activities; and in-water construction and affect the largest number of industries, regulations under development. It
dredging activities. A great deal of but the impacts Alternative B will have includes specific consultation directives
uncertainty exists with regard to how on those industries is expected to be for situations where a regulation will
potentially regulated entities will less severe because certain activities preempt state law, or impose substantial
attempt to avoid take of the Southern may be allowed to continue (e.g., some direct compliance costs on state and
DPS. This is caused by two factors: habitat restoration, emergency rescue, local governments (unless required by
relatively little data exist on green and research/monitoring activities) statute). Neither of those circumstances
sturgeon abundance and behavior, and under this alternative. Alternatives A is applicable to this rule. In fact, this
NMFS has a short history of managing and C are anticipated to affect a smaller notice provides mechanisms by which
the Southern DPS. In addition, the number of industries than the Full NMFS, in the form of 4(d) exceptions to
spatial distribution of the Southern DPS Action Alternative and Alternative B. take prohibitions, may defer to state and
overlaps nearly entirely with habitat for For reasons similar to those explained local governments where they provide
salmon and steelhead species. Several above, Alternative C is expected to have necessary protections for the Southern
key variables, such as whether current a less severe impact on the affected DPS. Even though this rule does not
fish passage facilities and fish screens industries than Alternative A.—The No have federalism implications, we
designed to protect salmon species will Action Alternative will have no effect requested information from appropriate
be considered adequate to provide on industries. State resource agencies in California,
passage for the Southern DPS over the Oregon, and Washington regarding the
long term, remain undetermined at this Executive Order (E.O.) 12866— proposed action. As subsequent issues
time. Thus, while baseline protections Regulatory Planning and Review with ESA compliance and rulemaking
are expected to be afforded to the This rule has been determined to be arise (e.g., issuance of permits, critical
Southern DPS on behalf of salmon and not significant for the purposes of E.O. habitat designation, recovery planning),
steelhead species, the degree to which 12866. we will continue to communicate with
incremental measures would be the States, and other affected local or
E.O. 12988—Civil Justice Reform regional entities, giving careful
required for the Southern DPS has not
been determined. As such, the FRFA We have determined that this final consideration to all concerns and
does not provide estimates of total costs rule does not unduly burden the judicial comments received.
of conservation measures likely to be system and meets the requirements of
sections 3(a) and 3(b)(2) of E.O. 12988. Paperwork Reduction Act (PRA)
undertaken for the Southern DPS.
Instead, the analysis characterizes We are providing protective regulations Notwithstanding any other provision
potential impacts on affected industries. pursuant to provisions in the ESA using of the law, no person is required to
In formulating this rule, we an existing approach that improves the respond to, nor shall any person be
considered five alternative approaches, clarity of the regulations and minimizes subject to a penalty for failure to comply
described in more detail in the FRFA. the regulatory burden of managing ESA with, a collection of information subject
These are: (1) A No Action Alternative listings while retaining the necessary to the requirements of the PRA, unless
where no ESA section 9(a)(1) and advisable protections to provide for that collection of information displays a
prohibitions or any other protective the conservation of threatened species. currently valid Office of Management
regulations are applied to the Southern and Budget (OMB) Control Number.
E.O. 13175—Consultation and This final rule contains collection-of-
DPS; (2) a Full Action Alternative where
all ESA section 9(a)(1) prohibitions are Coordination with Indian Tribal information requirements subject to the
applied to the Southern DPS; (3) Governments PRA, which have been submitted to
Alternative A where the prohibitions E.O. 13175 requires that, if NMFS OMB for review and approval. Public
listed under ESA section 9(a)(1)(A) and issues a regulation that significantly or reporting burden per response for this
9(a)(1)(D) through 9(a)(1)(G) are applied uniquely affects the communities of collection of information is estimated to
to the Southern DPS and the take Indian tribal governments and imposes average: (1) 40 hours for development of
prohibitions (ESA section 9(a)(1)(B) and substantial direct compliance costs on a Fisheries Management and Evaluation
9(a)(1)(C)) are applied to specific those communities, NMFS must consult Plan; (2) 20 hours for development of a
categories of activities that either cause with those governments, or the Federal Tribal Fishery Management Plan; (3) 40
take of Southern DPS fish; (4) Government must provide the funds hours for development of a State-
Alternative B (Proposed Action) where necessary to pay the direct compliance sponsored scientific research program;
ESA section 9(a)(1) prohibitions are costs incurred by the tribal (4) 5 hours to prepare reports on
applied to the Southern DPS as in the governments. This rule may impose emergency rescue, salvage, or disposal
Full Action Alternative, but with substantial direct compliance costs on of Southern DPS fish; (5) 40 hours to
exceptions and exemptions for activities the communities of Indian tribal prepare reports on restoration activities;
and (6) 40 hours to prepare reports on Dated: May 25, 2010. (v) Take involving the removal of any
Federal and private-sponsored research Eric C. Schwaab, life stage of the Southern DPS from the
and monitoring. These estimates Assistant Administrator for Fisheries, wild does not exceed 60 minutes;
include the time for reviewing National Marine Fisheries Service. (vi) Take does not involve artificial
instructions, searching existing data ■ For the reasons set out in the spawning or enhancement activities;
sources, gathering and maintaining the preamble, 50 CFR part 223 is amended (vii) A description of the study
data needed, and completing and as follows: objectives and justification, a summary
reviewing the collection of information. of the study design and methodology,
We invite comments regarding these PART 223—THREATENED MARINE estimates of the total non-lethal take of
burden estimates, or any other aspect of AND ANADROMOUS SPECIES Southern DPS fish anticipated,
this data collection, including estimates of incidental take of other ESA
suggestions for reducing the burden, to ■ 1. The authority citation for part 223 listed species anticipated and proof that
NMFS (see ADDRESSES) and to OMB at continues to read as follows: those takes have been authorized by
the Office of Information and Regulatory Authority: 16 U.S.C. 1531 1543; subpart B, NMFS or the USFWS, identification of
Affairs, Office of Management and § 223.201–202 also issued under 16 U.S.C. funding sources, and a point of contact
Budget, Washington, DC 20503 1361 et seq.; 16 U.S.C. 5503(d) for is reported to the NMFS Southwest
(Attention: NOAA Desk Officer). § 223.206(d)(9). Regional Office in Long Beach at least
■ 2. In subpart B of part 223, add 60 days prior to the start of the study,
National Environmental Policy Act or by August 31, 2010 for ongoing
(NEPA) § 223.210 to read as follows:
studies;
Whenever a species is listed as § 223.210 North American green sturgeon. (viii) Reports that include the total
threatened, the ESA requires that we (a) Prohibitions. The prohibitions of number of Southern DPS and any other
shall issue such regulations as we deem section 9(a)(1)(A) through 9(a)(1)(G) of ESA listed species taken, information
necessary and advisable to provide for the ESA (16 U.S.C. 1538) relating to that supports that take was non-lethal,
its conservation. Accordingly, the endangered species apply to the and a summary of the project results is
promulgation of ESA section 4(d) threatened Southern Distinct Population submitted to the NMFS Southwest
protective regulations is subject to the Segment (DPS) of North American green Regional Office in Long Beach on a
requirements of NEPA, and we have sturgeon listed in § 223.102(c)(1). schedule to be determined by NMFS;
prepared a final Environmental (b) Exceptions. Exceptions to the take and
Assessment (EA) analyzing the 4(d) prohibitions described in section (ix) Research or monitoring that
regulations and alternatives. The EA is 9(a)(1)(B) and (C) of the ESA (16 U.S.C. involves action, permitting, or funding
available upon request (see ADDRESSES), 1538(a)(1)(B) and (C)) applied in by a Federal agency still complies with
via our Web site at http:// paragraph (a) of this section to the the requirements of ESA section 7(a)(2)
swr.nmfs.noaa.gov, or via the Federal threatened Southern DPS listed in in order to ensure that the action will
eRulemaking Web site at http:// section 223.102(c) are described in the not jeopardize the continued existence
www.regulations.gov. following paragraphs (b)(1) through of the threatened Southern DPS.
(b)(3). (2) Enforcement Exception. The
E.O. 13211—Energy Supply, (1) Scientific Research and prohibitions of paragraph (a) of this
Distribution, or Use Monitoring Exceptions. The section relating to the threatened
E.O. 13211 requires agencies to prohibitions of paragraph (a) of this Southern DPS listed in § 223.102(c)(1)
prepare Statements of Energy Effects section relating to the threatened do not apply to any employee of NMFS,
when undertaking certain actions. Southern DPS listed in § 223.102(c)(1) when the employee, acting in the course
According to E.O. 13211, ‘‘significant do not apply to ongoing or future of his or her official duties, takes the
energy action’’ means any action by an Federal, state, or private-sponsored Southern DPS listed in § 223.102(c)(1)
agency that is expected to lead to the scientific research or monitoring without a permit, if such action is
promulgation of a final rule or activities if: necessary for purposes of enforcing the
regulation that is a significant regulatory (i) The scientific research or ESA or its implementing regulations.
action under E.O. 12866 and is likely to monitoring activity complies with (3) Emergency Fish Rescue and
have a significant adverse effect on the required state reviews or permits; Salvage Exceptions. The prohibitions of
supply, distribution, or use of energy. (ii) The research or monitoring paragraph (a) of this section relating to
NMFS has determined that this rule is activity is directed at the Southern DPS the threatened Southern DPS listed in
not a significant energy action. First, and is not incidental to research or § 223.102(c)(1) do not apply to
this rule is not significant under E.O. monitoring of another species; emergency fish rescue and salvage
12866. Second, this rule would not be (iii) Take of live mature adults in the activities that include aiding sick,
likely to result in significant adverse lower Feather River from the confluence injured, or stranded fish, disposing of
effects on the supply, distribution, or with the Sacramento River to the dead fish, or salvaging dead fish for use
use of energy, because the spatial scope Oroville Dam (rkm 116), the lower Yuba in scientific studies, if:
of this rule overlaps with areas where River from the confluence with the (i) The activity complies with
protections for ESA-listed salmonids are Feather River to the Daguerre Dam (rkm required state or other Federal reviews
in effect and it is likely that the 19), or Suisun, San Pablo, and San or permits;
modifications required for ESA-listed Francisco Bays or the Sacramento-San (ii) The activity is conducted by an
salmonids are similar to those that Joaquin Delta from the Golden Gate employee or designee of NMFS or the
would be required for the Southern Bridge up into the Sacramento River to U.S. Fish and Wildlife Service
DPS. Thus, no Statement of Energy Keswick Dam (rkm 483) occurs from (USFWS), any Federal land management
Effects is required for this rule. July 1 through March 1 so as to agency, or California Department of Fish
substantially increase the likelihood and Game, Oregon Department of Fish
List of Subjects in 50 CFR Part 223 that uninterrupted upstream spawning and Wildlife, Washington Department of
Endangered and threatened species, migrations of adults will occur; Fish and Wildlife, or Alaska Department
Exports, Imports, Transportation. (iv) Take is non-lethal; of Fish and Game;
(iii) The activity benefits the Southern agency complies with the requirements (iii) NMFS will provide written
DPS; and of ESA section 7(a)(2) in order to ensure approval of a state 4(d) research
(iv) Those carrying out the activity that the action will not jeopardize the program.
submit a report to the NMFS Southwest continued existence of the threatened (iv) The State agency will provide an
Regional Office in Long Beach that Southern DPS. annual report to NMFS that, at a
includes, at a minimum, the number (c) Exemptions via ESA 4(d) Program minimum, summarizes the number of
and status of fish handled, the location Approval. Exemptions from the take Southern DPS green sturgeon taken
of rescue and/or salvage operations, and prohibitions described in section directly or incidentally, and summarizes
the potential causes(s) of the emergency the results of the project.
9(a)(1)(B) and (C) of the ESA (16 U.S.C.
situation within 10 days after (2) Fisheries Exemptions. The
1538(a)(1)(B) and (C)) applied in
conducting the emergency rescue. prohibitions of paragraph (a) of this
paragraph (a) of this section to the section relating to the threatened
(4) Habitat Restoration Exceptions.
The prohibitions of paragraph (a) of this threatened Southern DPS listed in Southern DPS listed in § 223.102(c)(1)
section relating to the threatened § 223.102(c) are described in paragraphs do not apply to fisheries activities that
Southern DPS listed in § 223.102(c)(1) (c)(1) through (c)(3) of this section. are conducted in accordance with a
do not apply to habitat restoration (1) Scientific Research and NMFS-approved Fishery Management
activities including barrier removal or Monitoring Exemptions. The and Evaluation Plan (FMEP). If NMFS
modification to restore water flows, prohibitions of paragraph (a) of this finds that an FMEP meets the criteria
riverine or estuarine bed restoration, section relating to the threatened listed below, a letter of concurrence
natural bank stabilization, restoration of Southern DPS listed in § 223.102(c)(1) which sets forth the terms of the FMEP’s
native vegetation, removal of non-native do not apply to ongoing or future state- implementation and the duties of the
species, or removal of contaminated sponsored scientific research or parties pursuant to the FMEP, will be
sediments, that reestablish self- monitoring activities that are part of a issued to the applicant.
sustaining habitats for the Southern NMFS-approved, ESA-compliant state (i) An FMEP must prohibit retention
DPS, if: 4(d) research program conducted by, or of green sturgeon (i.e., zero bag limit);
(i) The activity complies with in coordination with, state fishery set maximum incidental take levels,
required state and Federal reviews and management agencies (California include restrictions to minimize
permits; Department of Fish and Game, Oregon incidental take of the green sturgeon
(ii) Those carrying out the activity Department of Fish and Wildlife, (e.g., temporal/spatial restrictions, size
submit a detailed description of the Washington Department of Fish and of fish, gear used); provide a biologically
restoration activity to the NMFS Wildlife, or Alaska Department of Fish based rationale demonstrating that the
Southwest Regional Office in Long and Game), or as part of a monitoring incidental take management strategy
Beach at least 60 days prior to the start and research program overseen by, or will not significantly reduce the
of the restoration project, or, for ongoing coordinated by, one of these agencies. likelihood of survival or recovery of the
studies, by August 31, 2010, which State 4(d) research programs must meet Southern DPS; include effective
includes: the geographic area affected; the following criteria: monitoring and evaluation plans;
when activities will occur; how they provide for evaluating monitoring data
(i) Descriptions of the ongoing and
will be conducted; and the severity of and making revisions to the FMEP;
future 4(d) research or monitoring
direct, indirect, and cumulative impacts provide for effective enforcement and
activity, as described in paragraph
of activities on the Southern DPS; education; provide a timeframe for
(c)(1)(ii) of this section, must be
identification of funding sources; FMEP implementation; and report the
received by the NMFS Southwest
demonstration that all state and Federal amount of incidental take and
Regional Office in Long Beach during
regulatory requirements have been met; summarize the effectiveness of the
the mid-September through mid-
a description of methods used to ensure FMEP to NMFS on a biannual basis.
October 2010 application period. This (ii) The ESA section 9(a)(1)(B) and
that the likelihood of survival or
exception to the section 9 take (a)(1)(C) take prohibitions will not apply
recovery of the listed species is not
prohibitions expires if the proposal is to ongoing commercial and recreational
reduced; a plan for minimizing and
rejected as insufficient or is denied. If fisheries activities until September 30,
mitigating any adverse impacts to
the state 4(d) research program package 2010 if a letter of intent to develop an
Southern DPS spawning or rearing
is received during the mid-September to FMEP that is protective of green
habitat; an estimate of the amount of
mid-October application period, sturgeon has been received by NMFS by
incidental take of the listed species that
ongoing state-supported scientific July 2, 2010. The exemption will expire
may occur and a description of how that
research activities may continue until if the letter of intent is rejected without
estimate was made; a plan for effective
NMFS issues a written decision of further review of a FMEP. If the letter of
monitoring and adaptive management; a
approval or denial. If approved, the state intent is received by August 31, 2010, a
pledge to use best available science and
4(d) program authorization will cover draft FMEP must be received by NMFS
technology when conducting restoration
one calendar year and state-supported within 6 months from the date of receipt
activities; and a point of contact;
(iii) Those carrying out the activity researchers would have to renew of the letter of intent. A final FMEP
submit progress reports that include the authorizations annually during must be received by NMFS within 3
total number of Southern DPS fish subsequent application periods. months from the date of receipt of
taken, information regarding whether (ii) Descriptions of ongoing and future NMFS’ comments on the draft FMEP.
the take was lethal or non-lethal, a state-supported research activities must Ongoing commercial and recreational
summary of the status of the project, include the following information and fisheries activities may continue until
and any changes in the methods being should be submitted to NMFS by the NMFS issues a letter of concurrence or
used, to the NMFS Southwest Regional State: an estimate of total direct or denial for final FMEPs.
Office in Long Beach on a schedule to incidental take; a description of the (iii) NMFS will provide a public
be determined by NMFS; and study design and methodology; a comment period (≥30 days) before
(iv) An activity that involves action, justification for take and the techniques approval of new or amended FMEPs;
permitting, or funding by a Federal employed; and a point of contact. provide a letter of concurrence for
approved FMEPs that specifies the (iv) The Secretary shall publish DEPARTMENT OF COMMERCE
implementation and reporting notification in the Federal Register of
requirements; evaluate FMEPs every 5 any determination regarding a Tribal National Oceanic and Atmospheric
years and identify changes that would Plan and the basis for that Administration
improve their effectiveness; and provide determination.
a public comment period (≥30 days) 50 CFR Part 635
(d) The exceptions of section 10 of the
before withdrawing approval of an RIN 0648–XW54
ESA (16 U.S.C. 1539) and other
FMEP.
exceptions under the ESA relating to
(3) Tribal Exemptions. The Atlantic Highly Migratory Species;
endangered species, including
prohibitions of paragraph (a) of this Atlantic Bluefin Tuna Fisheries
section relating to the threatened regulations in part 222 of this chapter II
Southern DPS listed in § 223.102(c)(1) implementing such exceptions, also AGENCY: National Marine Fisheries
do not apply to fishery harvest or other apply to the threatened Southern DPS of Service (NMFS), National Oceanic and
activities undertaken by a tribe, tribal North American green sturgeon listed in Atmospheric Administration (NOAA),
member, tribal permittee, tribal § 223.102(c)(1). Federal, state, and Commerce.
employee, or tribal agent in Willapa private-sponsored research activities for ACTION: Temporary rule; inseason
Bay, WA, Grays Harbor, WA, Coos Bay, scientific research or enhancement General category retention limit
OR, Winchester Bay, OR, Humboldt purposes that are not covered under adjustment.
Bay, CA, and any other area where tribal Scientific Research and Monitoring
Exceptions as described in paragraph SUMMARY: NMFS has determined that
treaty fishing occurs, if those activities
are compliant with a tribal resource (b)(1) of this section or Scientific the Atlantic tunas General category
management plan (Tribal Plan), Research and Monitoring Exemptions as daily Atlantic bluefin tuna (BFT)
provided that the Secretary determines retention limit should be adjusted for
described in paragraph (c)(1) of this
that implementation of such Tribal Plan the June through August 2010 time
section, may take Southern DPS fish
will not appreciably reduce the period, based on consideration of the
pursuant to the specifications of an ESA regulatory determination criteria
likelihood of survival and recovery of section 10 permit. Section 9(a)(1)(B) and
the Southern DPS. In making that regarding inseason adjustments. This
(a)(1)(C) take prohibitions would not action applies to Atlantic tunas General
determination the Secretary shall use apply to ongoing research activities if an
the best available biological data category permitted vessels and Highly
application for an ESA section Migratory Species Charter/Headboat
(including any tribal data and analysis) 10(a)(1)(A) permit is received by NMFS,
to determine the Tribal Plan’s impact on category permitted vessels (when
preferably through the NMFS online fishing commercially for BFT).
the biological requirements of the application Web site https://
species, and will assess the effect of the DATES: Effective June 1, 2010, through
apps.nmfs.noaa.gov, no later than August 31, 2010.
Tribal Plan on survival and recovery,
November 29, 2010. The take
consistent with legally enforceable tribal FOR FURTHER INFORMATION CONTACT:
rights and with the Secretary’s trust prohibitions would take effect if the Sarah McLaughlin or Brad McHale,
responsibilities to tribes. permit application is rejected as 978–281–9260.
(i) A Tribal Plan may include, but is insufficient or a permit is denied. If the
SUPPLEMENTARY INFORMATION:
not limited to, plans that address fishery permit application is received by
Regulations implemented under the
harvest, artificial production, research, November 29, 2010, ongoing research authority of the Atlantic Tunas
or water or land management, and may activities may continue without take Convention Act (16 U.S.C. 971 et seq.)
be developed by one tribe or jointly prohibitions until NMFS issues or and the Magnuson-Stevens Fishery
with other tribes. The Secretary will denies a permit. Conservation and Management Act
consult on a government-to-government (e) Affirmative Defense. In connection (Magnuson-Stevens Act; 16 U.S.C. 1801
basis with any tribe that so requests and with any action alleging a violation of et seq.) governing the harvest of BFT by
will provide, to the maximum extent the prohibitions of paragraph (a) of this persons and vessels subject to U.S.
practicable, technical assistance in section with respect to the threatened jurisdiction are found at 50 CFR part
examining impacts on the Southern DPS Southern DPS of North American green 635. Section 635.27 subdivides the U.S.
as tribes develop Tribal Plans. A Tribal sturgeon listed in § 223.102(c)(1), any BFT quota recommended by the
Plan must specify the procedures by person claiming that his or her take is International Commission for the
which the tribe will enforce its authorized via methods listed in Conservation of Atlantic Tunas (ICCAT)
provisions. paragraph (b) of this section shall have among the various domestic fishing
(ii) Where there exists a Federal court a defense where the person can categories, per the allocations
proceeding with continuing jurisdiction established in the 2006 Consolidated
demonstrate that the take authorization
over the subject matter of a Tribal Plan, Highly Migratory Species Fishery
is applicable and was in force, and that
the plan may be developed and Management Plan (2006 Consolidated
the person fully complied with the take
implemented within the ongoing HMS FMP) (71 FR 58058, October 2,
Federal Court proceeding. In such authorization requirements at the time
2006).
circumstances, compliance with the of the alleged violation. This defense is The 2010 BFT fishing year, which is
Tribal Plan’s terms shall be determined an affirmative defense that must be managed on a calendar-year basis and
within that Federal Court proceeding. raised, pleaded, and proven by the subject to an annual calendar year
(iii) The Secretary shall seek comment proponent. If proven, this defense will quota, began January 1, 2010. The
from the public on the Secretary’s be an absolute defense to liability under General category season, which was
pending determination whether section 9(a)(1)(G) of the ESA with open for the month of January 2010,
implementation of a Tribal Plan will respect to the alleged violation. resumes on June 1, 2010, and continues
appreciably reduce the likelihood of [FR Doc. 2010–13233 Filed 6–1–10; 8:45 am] through December 31, 2010. Starting on
survival and recovery of the listed BILLING CODE 3510–22–P June 1, the General category daily
Southern DPS. retention limit (§ 635.23(a)(2)), is
scheduled to revert back to the default before the end of the fishing year; the retention limit applies upon landing.
retention limit of one large medium or estimated amounts by which quotas for For example, whether a vessel fishing
giant BFT (measuring 73 inches (185 other gear categories of the fishery might under the General category limit takes a
cm) CFL) or greater per vessel per day/ be exceeded; effects of the adjustment two-day trip or makes two trips in one
trip. This default retention limit applies on BFT rebuilding and overfishing; day, the daily limit of three fish may not
to General category permitted vessels effects of the adjustment on be exceeded upon landing. This General
and HMS Charter/Headboat category accomplishing the objectives of the category retention limit is effective in all
permitted vessels (when fishing fishery management plan; variations in areas, except for the Gulf of Mexico, and
commercially for BFT). seasonal distribution, abundance, or applies to those vessels permitted in the
Each of the General category time migration patterns of BFT; effects of General category as well as to those
periods (January, June-August, catch rates in one area precluding HMS Charter/Headboat permitted
September, October-November, and vessels in another area from having a vessels fishing commercially for BFT.
December) is allocated a portion of the reasonable opportunity to harvest a This adjustment is intended to
annual General category quota, thereby portion of the category’s quota; and a provide a reasonable opportunity to
ensuring extended fishing opportunities review of dealer reports, daily landing harvest the U.S. quota of BFT without
in years when catch rates are high and trends, and the availability of the BFT exceeding it, while maintaining an
quota is available. For the 2009 fishing on the fishing grounds. equitable distribution of fishing
year, NMFS adjusted the General NMFS has considered the set of opportunities; to help achieve optimum
category limit from the default level of criteria cited above and their yield in the General category BFT
one large medium or giant BFT as applicability to the General category fishery; to collect a broad range of data
follows: two large medium or giant BFT BFT retention limit for the June-August for stock monitoring purposes; and to be
for January, and three large medium or 2010 General category fishery. Based on consistent with the objectives of the
giant BFT for June through December General category landings rates during Consolidated HMS FMP.
(73 FR 76972, December 18, 2008; 74 FR the June through August time-period
Monitoring and Reporting
26110, June 1, 2009; and 74 FR 44296, over the last several years, it is highly
August 28, 2009). NMFS adjusted the unlikely that the June through August NMFS selected the daily retention
January 2010 limit to two large medium subquota will be filled with the default limit for June-August 2010 after
or giant BFT (74 FR 68709, December daily retention limit of one BFT per examining an array of data as it pertains
29, 2009). vessel. For example, under the three- to the determination criteria. These data
The 2008 ICCAT recommendation fish limit that applied in June-August included, but were not limited to,
regarding Western BFT management 2009, June-August landings were 54 mt current and previous catch and effort
resulted in a U.S. quota of 1,034.9 mt for out of an available 311.5 mt. In addition rates in the BFT fisheries, quota
2009, and 977.4 mt for 2010. Consistent to the adjusted June-August 2010 availability, previous public comments
with the allocation scheme established subquota of 269.4 mt, 25.9 mt of the on inseason management measures,
in the Consolidated HMS FMP, the adjusted January 2010 subquota was stock status, etc. NMFS will continue to
baseline General category share was unused and automatically rolls forward monitor the BFT fishery closely through
475.7 mt for 2009, and is 448.6 mt for to the June-August 2010 subquota, per the mandatory dealer landing reports,
2010. The baseline June-August General § 635.27(a)(1)(ii), resulting in an which NMFS requires to be submitted
category subquota was 237.8 mt for available quota of 295.3 mt for the June- within 24 hours of a dealer receiving
2009, and is 224.3 mt for 2010. August 2010 period. Slow catch rates BFT. Depending on the level of fishing
In order to implement the ICCAT early in the season could result in effort and catch rates of BFT, NMFS
recommendation for the 2010 fishing unused quota being added to the later may determine that additional retention
year, NMFS has proposed quota portion of the General category season. limit adjustments are necessary to
specifications to set BFT quotas for each Increasing the daily retention limit from ensure available quota is not exceeded
of the established domestic fishing the default may mitigate rolling an or to enhance scientific data collection
categories and expects to publish the excessive amount of unused quota from from, and fishing opportunities in, all
final specifications by early June 2010. one time-period subquota to the next. geographic areas.
The proposed June-August 2010 Excessive rollover is undesirable Closures or subsequent adjustments to
subquota is 269.4 mt. because it effectively changes the time- the daily retention limits, if any, will be
Adjustment of General Category Daily period subquota allocation percentages published in the Federal Register. In
established in the 2006 Consolidated addition, fishermen may call the
Retention Limits
HMS FMP. Atlantic Tunas Information Line at (888)
Under § 635.23(a)(4), NMFS may Based on considerations of the 872–8862 or (978) 281–9260, or access
increase or decrease the daily retention available quota, fishery performance in www.hmspermits.gov, for updates on
limit of large medium and giant BFT recent years, and the availability of BFT quota monitoring and retention limit
over a range of zero to a maximum of on the fishing grounds, NMFS has adjustments.
three per vessel based on consideration determined that the General category
of the criteria provided under retention limit should be adjusted to Classification
§ 635.27(a)(8), which include: the allow for retention of the anticipated The Assistant Administrator for
usefulness of information obtained from 2010 General category quota, and that NMFS (AA) finds that it is impracticable
catches in the particular category for the same approach used for June-August and contrary to the public interest to
biological sampling and monitoring of 2009 is warranted. Therefore, NMFS provide prior notice of, and an
the status of the stock; the catches of the increases the General category retention opportunity for public comment on, this
particular category quota to date and the limit from the default limit of one large action for the following reasons:
likelihood of closure of that segment of medium or giant BFT to three large The regulations implementing the
the fishery if no adjustment is made; the medium or giant BFT per vessel per Consolidated HMS FMP provide for
projected ability of the vessels fishing day/trip, effective June 1, 2010, through inseason retention limit adjustments to
under the particular category quota to August 31, 2010. Regardless of the respond to the unpredictable nature of
harvest the additional amount of BFT duration of a fishing trip, the daily BFT availability on the fishing grounds,
the migratory nature of this species, and access to the fishery only during this Office of Sustainable Fisheries (F/SF1),
the regional variations in the BFT time period. NMFS, 55 Great Republic Drive,
fishery. Under § 635.23(a)(4), NMFS Therefore, the AA finds good cause Gloucester, MA 01930. These
may increase or decrease the daily under 5 U.S.C. 553(b)(B) to waive prior documents are also available from the
retention limit of large medium and notice and the opportunity for public HMS Management Division website at
giant BFT over a range of zero to a comment. For all of the above reasons, http://www.nmfs.noaa.gov/sfa/hms/ or
maximum of three per vessel based on and because this action relieves a at the Federal e-Rulemaking Portal:
consideration of the criteria provided restriction (i.e., the default General http://www.regulations.gov.
under § 635.27(a)(8), which include: the category retention limit is one fish per FOR FURTHER INFORMATION CONTACT:
usefulness of information obtained from vessel/trip whereas this action increases Sarah McLaughlin, 978–281–9260.
catches in the particular category for that limit and allows retention of SUPPLEMENTARY INFORMATION: Atlantic
biological sampling and monitoring of additional fish), there is also good cause tunas are managed under the dual
the status of the stock; the catches of the under 5 U.S.C. 553(d) to waive the 30– authority of the Magnuson-Stevens Act
particular category quota to date and the day delay in effectiveness. and ATCA. ATCA authorizes the
likelihood of closure of that segment of This action is being taken under 50 Secretary of Commerce (Secretary) to
the fishery if no adjustment is made; the CFR 635.23(a)(4) and (b)(3), and is promulgate regulations, as may be
projected ability of the vessels fishing exempt from review under Executive necessary and appropriate, to
under the particular category quota to Order 12866. implement ICCAT recommendations.
harvest the additional amount of BFT Authority: 16 U.S.C. 971 et seq. and 1801 The authority to issue regulations under
before the end of the fishing year; the et seq. the Magnuson-Stevens Act and ATCA
estimated amounts by which quotas for has been delegated from the Secretary to
other gear categories of the fishery might the Assistant Administrator for
be exceeded; effects of the adjustment Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, NOAA (AA).
on BFT rebuilding and overfishing;
effects of the adjustment on Fisheries, National Marine Fisheries Service. Background
accomplishing the objectives of the [FR Doc. 2010–13204 Filed 5–27–10; 4:15 pm]
Background information about the
fishery management plan; variations in BILLING CODE 3510–22–S
need for the 2010 BFT quota
seasonal distribution, abundance, or specifications was provided in the
migration patterns of BFT; effects of preamble to the proposed rule (74 FR
catch rates in one area precluding DEPARTMENT OF COMMERCE
63095, December 2, 2009), and is not
vessels in another area from having a National Oceanic and Atmospheric repeated here.
reasonable opportunity to harvest a Administration
portion of the category’s quota; and a Changes from the Proposed Rule
review of dealer reports, daily landing 50 CFR Part 635 Consistent with NMFS’
trends, and the availability of the BFT implementation of the 2009 BFT Quota
on the fishing grounds. [Docket No. 100317152–0176–01] Specifications, NMFS establishes the
Affording prior notice and RIN 0648–AY77 2010 U.S. baseline quota at the ICCAT-
opportunity for public comment to recommended level and carries over the
implement these retention limits is Atlantic Highly Migratory Species; full amount of available BFT
impracticable as it would preclude 2010 Atlantic Bluefin Tuna Quota underharvest allowed by ICCAT from
NMFS from acting promptly to allow Specifications 2009 to 2010, and distributes that
harvest of BFT that are available on the underharvest to: (1) provide the
fishing grounds. Analysis of available AGENCY: National Marine Fisheries Longline category sufficient quota to
data shows that the General category Service (NMFS), National Oceanic and operate during 2010 after the required
BFT retention limits may be increased Atmospheric Administration (NOAA), accounting for BFT dead discards; (2)
with minimal risks of exceeding the Commerce. maintain up to 15 percent of the 2010
ICCAT-allocated quota. ACTION: Final rule. U.S. quota in Reserve for potential
Delays in increasing these retention transfer to other ICCAT contracting
SUMMARY: NMFS is establishing Atlantic
limits would adversely affect those parties and other domestic management
General and Charter/Headboat category bluefin tuna (BFT) quota specifications objectives, if warranted; and (3) provide
vessels that would otherwise have an for 2010. This action is necessary to the non-Longline quota categories a
opportunity to harvest more than the implement recommendations of the share of the remainder of the
default retention limit of one BFT per International Commission for the underharvest consistent with the
day and may exacerbate the problem of Conservation of Atlantic Tunas (ICCAT), allocation scheme established in the
low catch rates and quota rollovers. as required by the Atlantic Tunas 2006 Consolidated Atlantic Highly
Limited opportunities to harvest the Convention Act (ATCA), and to achieve Migratory Species Fishery Management
respective quotas may have negative domestic management objectives under Plan (Consolidated HMS FMP).
social and economic impacts for U.S. the Magnuson-Stevens Fishery When NMFS prepared the proposed
fishermen who depend upon catching Conservation and Management Act rule, landings information was
the available quota within the time (Magnuson-Stevens Act). incomplete, and NMFS anticipated the
periods designated in the Consolidated DATES: Effective July 2, 2010. full amount of 2009 underharvest
HMS FMP. Adjustment of the retention ADDRESSES: Supporting documents, allowed under the 2008 ICCAT
limit needs to be effective June 1, 2010, including the Supplemental recommendation for the western
to minimize any unnecessary disruption Environmental Assessment, Regulatory Atlantic bluefin tuna stock (ICCAT
in fishing patterns and for the impacted Impact Review, and Final Regulatory Recommendation 08–04), i.e., 50
sectors to benefit from the adjustments Flexibility Analysis, are available from percent of the U.S. quota, or 488.7 mt,
so as to not preclude fishing Sarah McLaughlin, Highly Migratory would be available and carried forward
opportunities for fishermen who have Species (HMS) Management Division, to 2010. NMFS indicated that
adjustments to the quota specifications BFT fishery, the smaller amount of the period beginning January 1, 2010,
based on actual underharvest would be Reserve in this final rule would have no and ending January 31, 2010; 269.4 mt
made in the final rule. Complete direct impact on any particular fishing for the period beginning June 1, 2010,
information on 2009 landings is now category. and ending August 31, 2010; 142.8 mt
available, and it indicates a total 2009 As described in the Comments and for the period beginning September 1,
underharvest of 388.6 mt. Thus, in this Responses section below, following 2010, and ending September 30, 2010;
final action, NMFS carries forward requests for information regarding the 70.1 mt for the period beginning
388.6 mt of 2009 underharvest to 2010, start date of the Harpoon category October 1, 2010, and ending November
for a total adjusted 2010 BFT quota of fishery, NMFS clarifies in the regulatory 30, 2010; and 28 mt for the period
1,168.2 mt. text of this action the dates on which beginning December 1, 2010, and
Consistent with the proposed rule, the Harpoon category commences and ending December 31, 2010.
NMFS is applying 170.7 mt of the total the Purse Seine fishery closes, The Angling category quota of 225.4
underharvest to the pelagic longline consistent with existing NMFS guidance mt is subdivided as follows: School BFT
fishery in anticipation of both landings and publications, including the - 97.7 mt, with 37.6 mt to the northern
and projected discards. This is intended Consolidated HMS FMP. area (north of 39°18’ N. latitude), 42.1
to allow the fishery to operate for the
2010 Final Quota Specifications mt to the southern area (south of 39°18’
entire 2010 fishing year, i.e., to avoid
potential closure of the pelagic longline In accordance with ICCAT N. latitude), plus 18.1 mt held in
fishery prior to the end of the year while Recommendation 08–04, the reserve; large school/small medium BFT
the fleet is conducting directed Consolidated HMS FMP percentage - 122.5 mt, with 57.8 mt to the northern
operations for swordfish and other shares for each of the domestic area and 64.7 mt to the southern area;
Atlantic tunas. NMFS is placing 46.5 mt categories, and regulations regarding and large medium/giant BFT - 5.2 mt,
of 2009 underharvest in the Reserve and annual adjustments at § 635.27(a)(10), with 1.7 mt to the northern area and 3.5
is distributing the remainder of the NMFS establishes final 2010 quota mt to the southern area.
quota carryover (171.4 mt) to the specifications as follows (as shown in The 25–mt Northeast Distant gear
Angling, General, Harpoon, Purse Seine, the table below): General category - restricted area (NED) set-aside quota is
and Trap categories, consistent with the 538.9 mt; Harpoon category - 44.6 mt; in addition to the overall incidental
allocation percentage shares in the Purse Seine category - 212.8 mt; Angling longline quota, to be subdivided in
Consolidated HMS FMP. The amount category - 225.4 mt; Longline category - accordance with the North/South
NMFS is placing in the Reserve is 100.1 75 mt; and Trap category - 1.1 mt. A allocation percentages (i.e., no more
mt less than was proposed. This change total of 70.3 mt (46.5 mt of 2009 than 60 percent to the south of 31° N.
allows NMFS to maintain the proposed underharvest plus the Consolidated latitude). NMFS accounts for landings
amounts of underharvest to be allocated HMS FMP quota share of 23.8 mt) under the 25–mt NED allocation
to the Longline fishery and to the would be allocated to the Reserve separately from other Longline category
directed fishing categories for 2010, as category for inseason adjustments, landings. Thus, the Longline category
well as their respective adjusted quotas. scientific research collection, potential quota of 75 mt is subdivided as follows:
Because the Reserve is not a specific overharvest in any category except the 30 mt to pelagic longline vessels landing
fishing category, but rather serves as a Purse Seine category, and potential BFT north of 31° N. latitude, and 45 mt
pool from which NMFS may allocate quota transfers. to pelagic longline vessels landing BFT
quota for inseason or annual The General category quota of 538.9 south of 31° N. latitude.
adjustments to any category quota in the mt is subdivided as follows: 28.6 mt for BILLING CODE 3510–22–P
BILLING CODE 3510–22–C

ER02JN10.310</GPH>
Comments and Responses System to verify or supplement landings December). In 2002, NMFS received a
Below, NMFS summarizes and estimates. The LPS is specifically Petition for Rulemaking from the North
responds to all comments made designed to collect information on Carolina Division of Marine Fisheries to
specifically on the proposed quota recreational fishing directed at large formalize this winter fishery and extend
specifications. In addition, NMFS pelagic species, including tunas. This fishing opportunities for the General
received comments on issues that were specialized survey allows for higher category into January (67 FR 69502,
not considered part of this rulemaking, levels of sampling of fishing trips November 18, 2002). On December 24,
targeting BFT and other HMS, which 2003, NMFS extended the General
as described below.
ultimately improves estimates of total category end date from December 31 to
A. BFT Quotas catch and effort. NMFS considers the January 31 (68 FR 74504) to address
Comment 1: A few commenters BFT estimates produced by the LPS, in some of the concerns raised in the
support a total closure of the BFT combination with the landings reports Petition, as well as to increase fishing
fishery, or substantial cuts to the U.S. collected via the other programs opportunities and optimum yield for the
BFT quota, and stricter domestic described above, to constitute the best fishery overall. In 2006, NMFS modified
management measures for the information available with regard to the General category time period
sustainability of the stock. One stated recreational BFT landings. subquotas to allow for a formalized
Although NMFS also may adjust winter fishery via the Consolidated
that the BFT stock is a natural resource
recreational effort controls inseason HMS FMP (71 FR 58058, October 2,
belonging to all, not only those who
based on the best information available, 2006). These subquotas remain in effect.
profit from its use.
landings data generally are not available However, in November 2009, NMFS
Response: These specifications are
until the end of the calendar year. Using published a proposed rule that, if
promulgated in accordance with ICCAT
the data sets above along with finalized, could, among other things,
Recommendation 08–04, domestic
retrospective analysis, NMFS is able to allow the General category season to
legislation, such as the Magnuson-
estimate approximate landings remain open past January 31 until the
Stevens Act, ATCA, and their following the end of the year, and make entire subquota is utilized (74 FR 57128,
implementing regulations, and the adjustments to recreational daily November 4, 2009). This proposed
Consolidated HMS FMP. In retention limits for the upcoming year to action was initiated with the intent to
Recommendation 08–04, ICCAT maintain overall landings within the more thoroughly utilize available U.S.
adopted a western Atlantic BFT Total ICCAT-recommended quotas. BFT quota and, in particular, extend
Allowable Catch (TAC) of 1,800 mt for Comment 3: A representative from a fishing opportunities beyond the end of
the U.S. fisheries for 2010, based on commercial handgear organization January, if quota is still available. The
scientific advice and projections that, at states that the General category BFT comment period for this proposed rule
these harvest levels, the stock would allocation scheme, which allocates 89.5 was extended through March 31, 2010.
rebuild by the end of the rebuilding percent of the General category quota to Comment 4: A representative from a
period under the low recruitment the summer and fall fishery, which commercial handgear organization
scenario. NMFS is required under the traditionally take place in New England, objects to the allocation of underharvest
Magnuson-Stevens Act to provide U.S. is inequitable and violates National carried forward from 2009 to the
fishing vessels with a reasonable Standard 4 of the Magnuson-Stevens Longline category, and would prefer
opportunity to harvest the ICCAT- Act (i.e., it discriminates against allocation of this underharvest to the
recommended quota. Further, no residents of different states). The directed fishing categories that use live-
regulation promulgated under ATCA industry group seeks reallocation release methods and do not result in
may have the effect of increasing or generally, and requests that NMFS discards.
decreasing any allocation or quota of allocate quota from the 2010 adjusted Response: NMFS is applying 170.7 mt
fish to which the United States agreed Reserve to the January and December of the 2009 underharvest to the Longline
pursuant to an ICCAT recommendation. 2010 subquotas. category quota to provide the Longline
NMFS allocates the U.S. quota to ensure Response: The current General category sufficient quota to operate
that available fishing opportunities are category quota allocation scheme was during the entire 2010 fishing year, after
distributed over as wide a range as established in the 2006 Consolidated the required accounting for BFT dead
possible with regard to time of year, HMS FMP. During the development of discards. The regulations regarding
geographic area, and type of the previous HMS FMP, in 1999, the determination criteria and annual
participation while maintaining emergence of a General category BFT adjustment of the BFT quota at
consistency with measures taken to fishery in the southern Atlantic region §§ 635.27(a)(8) and 635.27(a)(10) allow
rebuild the BFT fishery. was extensively discussed by the HMS NMFS to transfer quotas among
Comment 2: One commenter is Advisory Panel (AP) and the public. At categories based on several criteria
concerned that the fishery for BFT the time, the majority of General (such as a review of landing trends, the
measuring less than 73 inches is category fishing activity took place in projected ability of the vessels fishing
insufficiently regulated and monitored. the summer and fall off the New under a particular category quota to
The commenter suggested that NMFS England and Mid-Atlantic coasts. harvest the additional amount of BFT
enforce a hard Angling category quota, However, the HMS AP did not agree on before the end of the fishing year, the
or stop the recreational BFT fishery on how the HMS FMP should address the estimated amounts by which quotas for
September 1, to prevent Angling scope of a southern area late season other categories might be exceeded, the
category quota excesses. General category BFT fishery. In the effects of the adjustment on
Response: To monitor the recreational early 2000s, NMFS performed a number accomplishing the objectives of the
BFT fishery, NMFS depends primarily of inseason quota transfers of BFT, fishery management plan, etc.). These
on the Large Pelagics Survey (LPS) for consistent with the transfer criteria regulations provide NMFS the flexibility
landings estimation, and uses established in the 1999 HMS FMP, to apply the underharvest to the overall
information from catch card reporting in which allowed the General category quota for the following fishing year, and
North Carolina and Maryland as well as BFT fishery to extend into the winter distribute the underharvest as needed,
the Automated Landings Reporting months (i.e., late November - provided that the total of the adjusted
category quotas and the Reserve is has presented increased fishing must consider carefully the potential
consistent with the ICCAT opportunities for recreational fishery effects on the stock rebuilding,
recommendation. participants at this time. However, there particularly when they result in
Distribution of the available is little certainty that this availability potential total catches that are greater
underharvest solely to the directed will continue for the long-term. than the scientifically recommended
fishing categories potentially could Furthermore, changes to the commercial TAC.
result in a closure of the pelagic minimum size need to be carefully
longline fishery prior to the end of the Classification
considered in the context of impacts to
year, while the longline fleet is the stock and rebuilding program, as NMFS publishes this final rule under
conducting directed operations for well as the socio-economic impacts for the authority of the Magnuson-Stevens
swordfish and other Atlantic tunas. the commercial and recreational BFT Act and ATCA. The Assistant
NMFS acknowledges that high landings fisheries. In addition, because the Administrator for Fisheries (AA) has
and discards are a growing issue for the United States landed its 2009 base determined that the regulations
pelagic longline fleet given the limited quota, and because ICCAT contained in this final rule are necessary
quota for incidental retention of BFT, Recommendation 08–04 limits the to implement the recommendations of
and continues to work with amount of quota that can be carried ICCAT, and to manage the domestic
stakeholders and the HMS AP to more forward to 10 percent starting in 2011, Atlantic HMS fisheries, and are
fully understand the scope of the providing additional access to small consistent with the Magnuson-Stevens
problem and possible solutions. medium BFT potentially could result in Act and its National Standards.
Comment 5: A BFT dealer asks if U.S. overharvest and U.S. non- This final rule been determined to be
NMFS can transfer quota from the Purse compliance with the ICCAT not significant for purposes of Executive
Seine category, which has not made full Order 12866.
Recommendation.
use of its quota in recent years, to the In compliance with Section 604 of the
Longline category for 2010. B. Other Issues Regulatory Flexibility Act (RFA), a Final
Response: As described in the Regulatory Flexibility Analysis (FRFA)
1) Extension of the General and
response to Comment 4, NMFS may was prepared for this rule. The FRFA
Harpoon Category Seasons
conduct annual adjustments or year-end revises the Initial Regulatory Flexibility
quota transfers among any of the Some of the Gloucester public hearing Analysis (IRFA), and analyzes the
categories based on the determination participants sought clarification of the anticipated economic impacts of the
criteria listed in the BFT quota Harpoon category fishery start date, and preferred actions and any significant
regulations. some requested that NMFS allow alternatives that could minimize
Comment 6: A representative of the General and Harpoon category fishing to economic impacts on small entities.
longline industry opposes the BFT commence May 1 rather than June 1, Each of the statutory requirements of
longline dead discard methodology in particularly given recent underharvests Section 604 of the RFA has been
place since the 2006 ICCAT Annual of those categories. addressed and a summary of the FRFA
Meeting, and is concerned about the 2) ICCAT Negotiations is below. The full FRFA and analysis of
potential for BFT quota shortages in the economic and ecological impacts are
near term, combined with potential A few industry representatives available from NMFS (see ADDRESSES).
increased longline interactions with request that the U.S. delegation to Section 604(a)(1) of the RFA requires
BFT as the stock recovers. ICCAT renegotiate the amount that the Agency to state the objective of and
Response: The United States applies western Atlantic ICCAT contracting need for the rule. The objective of this
the ICCAT Standing Committee on parties may carry forward to the next rule is to establish 2010 BFT quotas.
Research and Statistics (SCRS) approved year (from 10 percent to at least 25 This action is needed specifically to
methodology to calculate dead discards. percent), as U.S. landings are variable implement the 2008 ICCAT BFT
The United States must report dead from year to year and may increase as recommendation for 2010. The action is
discard estimates to ICCAT annually, a result of eastern Atlantic and also necessary and appropriate pursuant
and account for this mortality as part of Mediterranean TAC reductions and to ATCA, and to achieve domestic
the domestic specification calculation mixing. management objectives under the
process. Changes to the approved Response to Comments on Other Magnuson-Stevens Act, including
method would require consideration Issues: The suggestions listed above are rebuilding stocks and ending
and approval by the SCRS prior to U.S. beyond the scope of the rulemaking and overfishing. Because BFT quotas and
implementation. As described in the NEPA analysis for this action. However, allocations are codified in the HMS
response to Comment 4, NMFS will in the regulatory text of this action, regulations at § 635.27, a regulatory
continue to seek solutions to the issue NMFS clarifies that the Harpoon amendment is required to modify the
of BFT bycatch in the pelagic longline category fishery commences June 1 each baseline U.S. quota from 1,009.9 mt
fishery. year. NMFS also clarifies that the Purse (recommended for 2009) to 952.4 mt
Comment 7: A commercial handgear Seine fishery closes on December 31 of (recommended for 2010), and the
fisherman requests that NMFS manage each year. This information has been allocations (in mt) to the General,
the BFT fishery based on what the presented in numerous HMS Angling, Harpoon, Purse Seine,
science shows to be available to the U.S documents, including the Consolidated Longline, Trap, and Reserve categories,
fishery, i.e., allow greater access to HMS FMP, the annual Commercial per the percentage allocation shares set
small medium BFT, because they have Compliance Guides, and the annual forth in the Consolidated HMS FMP.
moved to grounds off New England. Atlantic Tunas Regulations brochures, Section 604(a)(2) of the RFA requires
Response: The current quota but addressing it in the regulatory text the Agency to summarize significant
allocation scheme and minimum sizes will provide needed clarity within the issues raised by public comments in
are as established in the 2006 fishery that is the subject of this rule. response to the IRFA, a summary of the
Consolidated HMS FMP. Increased In considering any change to the Agency’s assessment of such issues, and
availability of small medium BFT ICCAT recommendation on allowed a statement of any changes made as a
(measuring 59 to less than 73 inches) carryforward of underharvest, NMFS result of the comments. NMFS did not
receive any comments specifically on for small entities (category two above). and scale similar to 2009, or recent prior
the IRFA. NMFS does not know of any years, and would provide fishermen
Section 604(a)(3) of the RFA requires performance or design standards that additional fishing opportunities, subject
the Agency to describe and provide an would satisfy the aforementioned to the availability of BFT to the fishery,
estimate of the number of small entities objectives of this rulemaking, while in the short term. In the long term,
to which the rule will apply. The final concurrently complying with the however, as stock rebuilding is delayed,
action could directly affect the Magnuson-Stevens Act. negative impacts would result.
approximately 34,000 vessels that held As described below, NMFS analyzed It is difficult to estimate average
a 2009 Atlantic HMS Charter/Headboat, two alternatives in this final rulemaking potential ex-vessel revenues to
Atlantic HMS Angling, or an Atlantic and justified its selection of the commercial participants, largely
tunas permit and will hold one again in preferred alternative to achieve the because revenues depend heavily on the
2010. These permitted vessels consist of desired objective. Specifically, NMFS availability of large medium and giant
commercial, recreational, and charter analyzed a no-action alternative, and a BFT to the fishery. Section 4 of the
vessels as well as headboats. Of these, preferred alternative that would Supplemental Environmental
8,318 permit holders (the combined implement the 2008 ICCAT Assessment, Regulatory Impact Review,
number of commercial category permit recommendation. and Final Regulatory Flexibility
holders, including charter/headboat NMFS has estimated the average Analysis describes potential revenue
vessels) are considered small business impact that the preferred alternative to losses per commercial quota category,
entities according to the Small Business establish the 2010 BFT quota for all based on each category’s proposed base
Administration’s standard for defining a domestic fishing categories would have quota reduction and price-per-pound
small entity. on individual permit categories and the information from 2009. This was found
Section 604(a)(4) of the RFA requires vessels within those categories. As to be $454,059 for the General category,
the Agency to describe the projected mentioned above, the 2008 ICCAT $27,888 for the Harpoon category,
reporting, recordkeeping, and other recommendation reduces the U.S. BFT $46,420 for the Longline category, $0 for
compliance requirements of the final quota for 2010 to 977.4 mt. This quota the Trap category, and $139,278 for the
rule, including an estimate of the classes allocation includes 25 mt to account for Purse Seine category. Because the
of small entities which would be subject incidental catch of BFT related to directed commercial categories have
to the requirements of the report or directed longline fisheries in the NED. underharvested their subquotas in
record. None of the alternatives This action would distribute the recent years, the potential decreases in
considered for this final rule would adjusted (baseline) quota of 952.4 mt to ex-vessel revenues above overestimate
result in additional reporting, the domestic fishing categories based on the probable economic impacts to those
recordkeeping, and compliance the allocation percentages established in categories relative to recent conditions.
requirements. the Consolidated HMS FMP. Additionally, there has been substantial
Section 604(a)(5) of the RFA requires In 2009, the annual gross revenues interannual variability in ex-vessel
the Agency to describe the steps taken from the commercial BFT fishery were revenues per category in recent years
to minimize the significant economic approximately $6.9 million. As due to recent changes in BFT
impact on small entities consistent with described above, 8,318 vessels are availability and other factors. Generally,
the stated objectives of applicable permitted to land and sell BFT under the interannual differences in ex-vessel
statutes. Additionally, section 603(c)(1)- four commercial BFT quota categories revenues per category have been larger
(4) of the RFA lists four general (including charter/headboat vessels). than the potential impacts described
categories of ‘‘significant’’ alternatives The commercial categories and their above.
that would assist an agency in the 2009 gross revenues are General Data on net revenues of individual
development of alternatives. These ($5,040,772), Harpoon ($498,877), Purse fishermen are lacking, so the economic
categories of alternatives are: (1) Seine ($149,934), and Longline impact of the alternatives is averaged
establishment of differing compliance or ($1,247,600). The FRFA assumes that across each category. NMFS considers
reporting requirements or timetables each vessel within a category would this a reasonable approach for BFT
that take into account the resources have similar catch and gross revenues, fisheries, in particular because available
available to small entities; (2) to show the relative impact of the landings data (weight and ex-vessel
clarification, consolidation, or proposed action on vessels. value of the fish in price/pound) allow
simplification of compliance and In its analysis of alternatives, NMFS NMFS to calculate the gross revenue
reporting requirements under the rule found that implementation of the earned by a fishery participant on a
for such small entities; (3) use of preferred alternative would be in successful trip. The available data do
performance rather than design accordance with the Consolidated HMS not, however, allow NMFS to calculate
standards; and (4) exemptions from FMP and consistent with ATCA, under the effort and cost associated with each
coverage of the rule for small entities. which the United States is obligated to successful trip (e.g., the cost of gas, bait,
In order to meet the objectives of this implement ICCAT-approved quota ice, etc.), so net revenue for each
final rule, consistent with the recommendations as necessary and participant cannot be calculated. As a
Magnuson-Stevens Act, NMFS cannot appropriate. The preferred alternative result, NMFS analyzes the average
exempt small entities or change the would implement this quota, and have impact of the proposed alternatives
reporting requirements only for small slightly positive impacts for fishermen among all participants in each category.
entities, because all of the affected in the long-run as the stock rebuilds. Success rates vary widely across
businesses (commercial vessel permit The no-action alternative would keep participants in each category (due to
holders) are considered small entities. the quota at the 2009 levels extent of vessel effort and availability of
Thus, there are no alternatives (approximately 58 mt more), and would commercial-sized BFT to participants
discussed that fall under the first and be inconsistent with the purpose and where they fish), but for the sake of
fourth categories described above. In need for this action as well as the estimating potential revenue loss per
addition, none of the alternatives Consolidated HMS FMP. It would retain vessel, category-wide revenue losses can
considered would result in an increase economic impacts to the United States be divided by the number of permitted
or decrease of reporting requirements and to local economies at a distribution vessels in each category. Because HMS
Charter/Headboat vessels may fish percent (448.6 mt); Angling - 19.7 specified in paragraph (a)(3) of this
commercially under the General percent (187.6 mt), which includes the section, may be school BFT. The
category quota and retention limits, school BFT held in reserve as described Angling category quota includes the
Charter/Headboat permitted vessels are under paragraph (a)(7)(ii) of this section; amount of school BFT held in reserve
considered along with General category Harpoon - 3.9 percent (37.1 mt); Purse under paragraph (a)(7)(ii) of this section.
vessels when estimating potential Seine - 18.6 percent (177.2 mt); Longline The size class subquotas for BFT are
General category ex-vessel revenue - 8.1 percent (77.1 mt), which does not further subdivided as follows:
changes. Potential ex-vessel revenue include the additional annual 25 mt (i) After adjustment for the school
losses have been estimated as follows: allocation provided in paragraph (a)(3) BFT quota held in reserve (under
General category (including Charter/ of this section; and Trap - 0.1 percent paragraph (a)(7)(ii) of this section), 52.8
Headboat vessels): $57; Harpoon (1.0 mt). The remaining 2.5 percent percent (42.1 mt) of the school BFT
category: $1,213; Longline category (23.8 mt) of the baseline annual U.S. Angling category quota may be caught,
(incidental): $171; Trap category BFT quota will be held in reserve for retained, possessed, or landed south of
(incidental): $0; and Purse Seine inseason or annual adjustments based 39°18’ N. lat. The remaining school BFT
category: $46,426. These values likely on the criteria in paragraph (a)(8) of this Angling category quota (37.6 mt) may be
overestimate potential revenue losses section. NMFS may apportion a quota caught, retained, possessed or landed
for vessels that actively fish and are allocated to any category to specified north of 39°18’ N. lat.
successful in landing at least one BFT. fishing periods or to geographic areas (ii) An amount equal to 52.8 percent
and will make annual adjustments to (45.2 mt) of the large school/small
List of Subjects in 50 CFR Part 635 medium BFT Angling category quota
quotas, as specified in paragraph (a)(10)
Fisheries, Fishing, Fishing vessels, of this section. BFT quotas are specified may be caught, retained, possessed, or
Foreign relations, Imports, Penalties, in whole weight. landed south of 39°18’ N. lat. The
Reporting and recordkeeping (1) * * * remaining large school/small medium
requirements, Treaties. (i) Catches from vessels for which BFT Angling category quota (40.4 mt)
General category Atlantic Tunas permits may be caught, retained, possessed or
have been issued, and certain catches landed north of 39°18’ N. lat.
Eric C. Schwaab, (iii) An amount equal to 66.7 percent
Assistant Administrator for Fisheries,
from vessels for which an HMS Charter/
(2.9 mt) of the large medium and giant
National Marine Fisheries Service. Headboat permit has been issued, are
BFT Angling category quota may be
counted against the General category
■ For the reasons set out in the caught, retained, possessed, or landed
quota in accordance with § 635.23(c)(3).
preamble, 50 CFR part 635 is amended south of 39°18’ N. lat. The remaining
The amount of large medium and giant
as follows: large medium and giant BFT Angling
BFT that may be caught, retained,
category quota (1.4 mt) may be caught,
PART 635–ATLANTIC HIGHLY possessed, landed, or sold under the
retained, possessed or landed north of
MIGRATORY SPECIES General category quota is 47.1 percent 39°18’ N. lat.
(448.6 mt) of the baseline annual U.S. (3) Longline category quota. The total
■ 1. The authority citation for part 635 BFT quota, and is apportioned as amount of large medium and giant BFT
continues to read as follows: follows: that may be caught incidentally and
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. (A) January 1 through January 31 - 5.3 retained, possessed, or landed by
1801 et seq. percent (23.8 mt); vessels that possess Longline category
■ 2. In § 635.27, paragraphs (a) (B) June 1 through August 31 - 50 Atlantic Tunas permits is 8.1 percent
introductory text, (a)(1)(i), (a)(2), (a)(3), percent (224.3 mt); (77.1 mt) of the baseline annual U.S.
(a)(4)(i), (a)(5), (a)(7)(i), and (a)(7)(ii) are (C) September 1 through September BFT quota. No more than 60.0 percent
revised to read as follows: 30 - 26.5 percent (118.9 mt); (46.2 mt) of the Longline category quota
(D) October 1 through November 30 - may be allocated for landing in the area
§ 635.27 Quotas. 13 percent (58.3 mt); and south of 31°00’ N. lat. In addition, 25 mt
(a) BFT. Consistent with ICCAT (E) December 1 through December 31 shall be allocated for incidental catch by
recommendations, and with paragraph - 5.2 percent (23.3 mt). pelagic longline vessels fishing in the
(a)(10)(iv) of this section, NMFS may * * * * * Northeast Distant gear restricted area as
subtract the most recent, complete, and (2) Angling category quota. In specified at § 635.23(f)(3).
available estimate of dead discards from accordance with the framework (4) * * *
the annual U.S. BFT quota, and make procedures of the Consolidated HMS (i) The total amount of large medium
the remainder available to be retained, FMP, prior to each fishing year, or as and giant BFT that may be caught,
possessed, or landed by persons and early as feasible, NMFS will establish retained, possessed, or landed by
vessels subject to U.S. jurisdiction. The the Angling category daily retention vessels that possess Purse Seine
remaining baseline annual U.S. BFT limits. The total amount of BFT that category Atlantic Tunas permits is 18.6
quota will be allocated among the may be caught, retained, possessed, and percent (177.2 mt) of the baseline
General, Angling, Harpoon, Purse Seine, landed by anglers aboard vessels for annual U.S. BFT quota. The directed
Longline, Trap, and Reserve categories. which an HMS Angling permit or an purse seine fishery for BFT commences
BFT may be taken by persons aboard HMS Charter/Headboat permit has been on July 15 of each year, unless NMFS
vessels issued Atlantic Tunas permits, issued is 19.7 percent (187.6 mt) of the takes action to delay the season start
HMS Angling permits, or HMS Charter/ baseline annual U.S. BFT quota. No date. Based on cumulative and projected
Headboat permits. The baseline annual more than 2.3 percent (4.3 mt) of the landings in other commercial fishing
U.S. BFT quota is 952.4 mt, not annual Angling category quota may be categories, and the potential for gear
including an additional annual 25 mt large medium or giant BFT. In addition, conflicts on the fishing grounds or
allocation provided in paragraph (a)(3) over each 2–consecutive-year period market impacts due to oversupply,
of this section. The baseline annual U.S. (starting in 2009, inclusive), no more NMFS may delay the BFT purse seine
BFT quota is divided among the than 10 percent of the annual U.S. BFT season start date from July 15 to no later
categories as follows: General - 47.1 quota, inclusive of the allocation than August 15 by filing an adjustment
with the Office of the Federal Register DEPARTMENT OF COMMERCE Scup, and Black Sea Bass Fishery
prior to July 1. The Purse Seine category Management Plan, which was published
fishery closes on December 31 of each National Oceanic and Atmospheric on December 17, 1993 (58 FR 65936),
year. Administration provided a mechanism for summer
* * * * * flounder quota to be transferred from
(5) Harpoon category quota. The total 50 CFR Part 648 one state to another. Two or more states,
amount of large medium and giant BFT [Docket No. 0908191244–91427–02] under mutual agreement and with the
that may be caught, retained, possessed, concurrence of the Administrator,
landed, or sold by vessels that possess RIN 0648–XW47 Northeast Region, NMFS (Regional
Harpoon category Atlantic Tunas Administrator), can transfer or combine
permits is 3.9 percent (37.1 mt) of the Fisheries of the Northeastern United
States; Summer Flounder Fishery; summer flounder commercial quota
baseline annual U.S. BFT quota. The under § 648.100(d). The Regional
Harpoon category fishery commences on Quota Transfer
Administrator is required to consider
June 1 of each year, and closes on AGENCY: National Marine Fisheries the criteria set forth in § 648.100(d)(3) in
November 15 of each year. Service (NMFS), National Oceanic and the evaluation of requests for quota
* * * * * Atmospheric Administration (NOAA), transfers or combinations.
(7) * * * Commerce.
(i) The total amount of BFT that is North Carolina has agreed to transfer
ACTION: Temporary rule; quota transfer. 10,975 lb (4,978 kg) of its 2010
held in reserve for inseason or annual
adjustments and fishery-independent SUMMARY: NMFS announces that the commercial quota to Virginia. This
research using quotas or subquotas is State of North Carolina is transferring a transfer was prompted by summer
2.5 percent (23.8 mt) of the baseline portion of its 2010 commercial summer flounder landings of a North Carolina
annual U.S. BFT quota. Consistent with flounder quota to the Commonwealth of vessel that was granted safe harbor in
paragraph (a)(8) of this section, NMFS Virginia. By this action, NMFS adjusts Virginia due to mechanical problems on
may allocate any portion of this reserve the quotas and announces the revised April 9, 2010. The Regional
for inseason or annual adjustments to commercial quota for each state Administrator has determined that the
any category quota in the fishery. involved. criteria set forth in § 648.100(d)(3) have
(ii) The total amount of school BFT been met. The revised quotas for
that is held in reserve for inseason or DATES: Effective May 27, 2010 through
December 31, 2010. calendar year 2010 are: North Carolina,
annual adjustments and fishery- 3,371,527 lb (1,529,299 kg); and
independent research is 18.5 percent FOR FURTHER INFORMATION CONTACT:
Virginia, 2,908,930 lb (1,319,468 kg).
(18.1 mt) of the total school BFT Sarah Heil, Fishery Management
Angling category quota as described Specialist, 978–281–9257. Classification
under paragraph (a)(2) of this section. SUPPLEMENTARY INFORMATION:
This amount is in addition to the Regulations governing the summer This action is taken under 50 CFR
amounts specified in paragraph (a)(7)(i) flounder fishery are found at 50 CFR part 648 and is exempt from review
of this section. Consistent with part 648. The regulations require annual under Executive Order 12866.
paragraph (a)(8) of this section, NMFS specification of a commercial quota that Authority: 16 U.S.C. 1801 et seq.
may allocate any portion of the school is apportioned among the coastal states Dated: May 27, 2010.
BFT Angling category quota held in from North Carolina through Maine. The
reserve for inseason or annual process to set the annual commercial Carrie Selberg,
adjustments to the Angling category. quota and the percent allocated to each Acting Director, Office of Sustainable
* * * * * state are described in § 648.100. Fisheries, National Marine Fisheries Service.
[FR Doc. 2010–13207 Filed 5–27–10; 4:15 pm] The final rule implementing [FR Doc. 2010–13205 Filed 5–27–10; 4:15 pm]
BILLING CODE 3510–22–S Amendment 5 to the Summer Flounder, BILLING CODE 3510–22–S
30740
Proposed Rules Federal Register

Vol. 75, No. 105
This section of the FEDERAL REGISTER DATES: We must receive comments on Comments Invited
contains notices to the public of the proposed this proposed AD by July 19, 2010. We invite you to send any written
issuance of rules and regulations. The
purpose of these notices is to give interested ADDRESSES: You may send comments by relevant data, views, or arguments about
persons an opportunity to participate in the any of the following methods: this proposed AD. Send your comments
rule making prior to the adoption of the final • Federal eRulemaking Portal: Go to to an address listed under the
rules. ADDRESSES section. Include ‘‘Docket No.
http://www.regulations.gov. Follow the
instructions for submitting comments. FAA–2010–0439; Directorate Identifier
2010–NM–029–AD’’ at the beginning of
DEPARTMENT OF TRANSPORTATION • Fax: (202) 493–2251. your comments. We specifically invite
• Mail: U.S. Department of comments on the overall regulatory,
Federal Aviation Administration Transportation, Docket Operations, M– economic, environmental, and energy
30, West Building Ground Floor, Room aspects of this proposed AD. We will
14 CFR Part 39 W12–140, 1200 New Jersey Avenue SE., consider all comments received by the
[Docket No. FAA–2010–0439; Directorate Washington, DC 20590. closing date and may amend this
Identifier 2010–NM–029–AD] • Hand Delivery: U.S. Department of proposed AD based on those comments.
Transportation, Docket Operations, M– We have lengthened the 30-day
RIN 2120–AA64
30, West Building Ground Floor, Room comment period for proposed ADs that
Airworthiness Directives; Bombardier, W12–40, 1200 New Jersey Avenue SE., address MCAI originated by aviation
Inc. Model CL–600–2B16 (CL–604 Washington, DC, between 9 a.m. and 5 authorities of other countries to provide
Variants (Including CL–605 Marketing p.m., Monday through Friday, except adequate time for interested parties to
Variant)) Airplanes Federal holidays. submit comments. The comment period
for these proposed ADs is now typically
AGENCY: Federal Aviation For service information identified in 45 days, which is consistent with the
Administration (FAA), DOT. this proposed AD, contact Bombardier, comment period for domestic transport
ACTION: Notice of proposed rulemaking
Inc., 400 Côte-Vertu Road West, Dorval, ADs.
(NPRM). Québec H4S 1Y9, Canada; telephone We will post all comments we
514–855–5000; fax 514–855–7401; e- receive, without change, to http://
SUMMARY: We propose to adopt a new mail thd.crj@aero.bombardier.com; www.regulations.gov, including any
airworthiness directive (AD) for the Internet http://www.bombardier.com. personal information you provide. We
products listed above. This proposed You may review copies of the will also post a report summarizing each
AD results from mandatory continuing referenced service information at the substantive verbal contact we receive
airworthiness information (MCAI) FAA, Transport Airplane Directorate, about this proposed AD.
originated by an aviation authority of 1601 Lind Avenue SW., Renton,
another country to identify and correct Washington. For information on the Discussion
an unsafe condition on an aviation availability of this material at the FAA, Transport Canada Civil Aviation
product. The MCAI describes the unsafe call 425–227–1221. (TCCA), which is the aviation authority
condition as: Following five reported Examining the AD Docket for Canada, has issued Canadian
cases of balance washer screw failure on Airworthiness Directive CF–2009–50,
similar ADGs [air-driven generators]/ You may examine the AD docket on dated December 17, 2009 (referred to
ram air turbines installed on other the Internet at http://www.regulations. after this as ‘‘the MCAI’’), to correct an
aircraft types, investigation by Hamilton gov; or in person at the Docket unsafe condition for the specified
Sundstrand determined that a specific Operations office between 9 a.m. and 5 products. The MCAI states:
batch of the screws had a p.m., Monday through Friday, except Following five reported cases of * * *
metallographic non-conformity that Federal holidays. The AD docket balance washer screw failure on similar
increased their susceptibility to brittle contains this proposed AD, the ADGs [air-driven generators]/ram air turbines
fracture. Failure of a balance washer regulatory evaluation, any comments installed on other aircraft types, investigation
screw can result in loss of the related received, and other information. The by Hamilton Sundstrand determined that a
balance washer, with consequent street address for the Docket Operations specific batch of the screws had a
turbine imbalance. Such imbalance metallographic non-conformity that
office (telephone (800) 647–5527) is in increased their susceptibility to brittle
could potentially result in ADG the ADDRESSES section. Comments will fracture. Subsequently, it was established
structural failure (including blade be available in the AD docket shortly that 152 ‘‘dry’’ ADGs [Hamilton Sundstrand
failure), loss of ADG electrical power after receipt. Part Numbers (P/Ns) in the 761339 series and
and structural damage to the aircraft 1711405; see Note] either had non-
FOR FURTHER INFORMATION CONTACT:
and, if deployment was activated by a conforming screws installed during
Christopher Alfano, Aerospace production or possibly during maintenance
jlentini on DSKJ8SOYB1PROD with PROPOSALS
dual engine shutdown, could also result

Engineer, Airframe and Mechanical or repair at Hamilton Sundstrand repair
in loss of hydraulic power for the flight
Systems Branch, ANE–171, FAA, New stations.
controls [and consequent reduced
York Aircraft Certification Office, 1600 Failure of a balance washer screw can
ability of the flightcrew to maintain the result in loss of the related balance washer,
Stewart Avenue, Suite 410, Westbury,
safe flight and landing of the airplane]. with consequent turbine imbalance. Such
New York 11590; telephone (516) 228–
The proposed AD would require actions imbalance could potentially result in ADG
7340; fax (516) 794–5531.
that are intended to address the unsafe structural failure (including blade failure),
condition described in the MCAI. SUPPLEMENTARY INFORMATION: loss of ADG electrical power and structural
VerDate Mar<15>2010 16:31 Jun 01, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\02JNP1.SGM 02JNP1
Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Proposed Rules 30741
damage to the aircraft and, if deployment was registry. We also estimate that it would this proposed AD and placed it in the
activated by a dual engine shutdown, could take about 10 work-hours per product to AD docket.
also result in loss of hydraulic power for the comply with the basic requirements of
flight controls [and consequent reduced List of Subjects in 14 CFR Part 39
ability of the flightcrew to maintain the safe
this proposed AD. The average labor
rate is $85 per work-hour. Required Air transportation, Aircraft, Aviation
flight and landing of the airplane].
This [Canadian] directive mandates parts would cost about $0 per product. safety, Incorporation by reference,
checking of the ADG and replacing the Where the service information lists Safety.
balance washer screws, if required. It also required parts costs that are covered The Proposed Amendment
prohibits future installation of unmodified under warranty, we have assumed that
ADGs. there will be no charge for these costs. Accordingly, under the authority
As we do not control warranty coverage delegated to me by the Administrator,
Note: ADGs with Hamilton Sundstrand P/ the FAA proposes to amend 14 CFR part
Ns in the 761339 series and 1711405 are for affected parties, some parties may
incur costs higher than estimated here. 39 as follows:
installed on the aircraft model listed in the
Applicability section above in addition to Based on these figures, we estimate the PART 39—AIRWORTHINESS
Bombardier Inc. Models CL–600–2B19, CL– cost of the proposed AD on U.S. DIRECTIVES
600–2C10 and CL–600–2D24. The latter three operators to be $131,750, or $850 per
models are covered in a separate directive. product. 1. The authority citation for part 39
You may obtain further information by continues to read as follows:
Authority for This Rulemaking
examining the MCAI in the AD docket. Authority: 49 U.S.C. 106(g), 40113, 44701.
Title 49 of the United States Code
Relevant Service Information specifies the FAA’s authority to issue § 39.13 [Amended]
Bombardier has issued Service rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by adding
Bulletins 604–24–021 and 605–24–001, section 106, describes the authority of the following new AD:
both dated July 13, 2009. The actions the FAA Administrator. ‘‘Subtitle VII: Bombardier, Inc.:Docket No. FAA–2010–
described in this service information are Aviation Programs,’’ describes in more 0439; Directorate Identifier 2010–NM–
intended to correct the unsafe condition detail the scope of the Agency’s 029–AD.
identified in the MCAI. authority.
Comments Due Date
FAA’s Determination and Requirements We are issuing this rulemaking under
the authority described in ‘‘Subtitle VII, (a) We must receive comments by July 19,
of This Proposed AD 2010.
Part A, Subpart III, Section 44701:
This product has been approved by General requirements.’’ Under that Affected ADs
the aviation authority of another section, Congress charges the FAA with (b) None.
country, and is approved for operation promoting safe flight of civil aircraft in
in the United States. Pursuant to our Applicability
air commerce by prescribing regulations
bilateral agreement with the State of for practices, methods, and procedures (c) This AD applies to Bombardier, Inc.
Design Authority, we have been notified the Administrator finds necessary for Model CL–600–2B16 (CL–604 Variant)
of the unsafe condition described in the airplanes; certificated in any category; serial
safety in air commerce. This regulation numbers (S/N) 5408 and subsequent.
MCAI and service information is within the scope of that authority
referenced above. We are proposing this Note 1: Some Model CL–600–2B16 (CL–
because it addresses an unsafe condition 604 Variant) airplanes might be referred to by
AD because we evaluated all pertinent that is likely to exist or develop on
information and determined an unsafe a marketing designation of CL–605.
products identified in this rulemaking
condition exists and is likely to exist or action. Subject
develop on other products of the same (d) Air Transport Association (ATA) of
type design. Regulatory Findings
America Code 24: Electrical power.
Differences Between This AD and the We determined that this proposed AD
Reason
MCAI or Service Information would not have federalism implications
under Executive Order 13132. This (e) The mandatory continuing
We have reviewed the MCAI and airworthiness information (MCAI) states:
proposed AD would not have a
related service information and, in Following five reported cases of * * *
substantial direct effect on the States, on balance washer screw failure on similar
general, agree with their substance. But
the relationship between the national ADGs [air-driven generators]/ram air turbines
we might have found it necessary to use
Government and the States, or on the installed on other aircraft types, investigation
different words from those in the MCAI
distribution of power and by Hamilton Sundstrand determined that a
to ensure the AD is clear for U.S.
responsibilities among the various specific batch of the screws had a
operators and is enforceable. In making metallographic non-conformity that
levels of government.
these changes, we do not intend to differ increased their susceptibility to brittle
For the reasons discussed above, I
substantively from the information fracture. Subsequently, it was established
certify this proposed regulation:
provided in the MCAI and related that 152 ‘‘dry’’ ADGs [Hamilton Sundstrand
service information. 1. Is not a ‘‘significant regulatory Part Numbers (P/Ns) in the 761339 series and
We might also have proposed action’’ under Executive Order 12866; 1711405; see Note] either had non-
different actions in this AD from those 2. Is not a ‘‘significant rule’’ under the conforming screws installed during
in the MCAI in order to follow FAA DOT Regulatory Policies and Procedures production or possibly during maintenance
(44 FR 11034, February 26, 1979); and or repair at Hamilton Sundstrand repair
policies. Any such differences are

3. Will not have a significant stations.
highlighted in a NOTE within the Failure of a balance washer screw can
proposed AD. economic impact, positive or negative,
result in loss of the related balance washer,
on a substantial number of small entities
Costs of Compliance with consequent turbine imbalance. Such
under the criteria of the Regulatory imbalance could potentially result in ADG
Based on the service information, we Flexibility Act. structural failure (including blade failure),
estimate that this proposed AD would We prepared a regulatory evaluation loss of ADG electrical power and structural
affect about 155 products of U.S. of the estimated costs to comply with damage to the aircraft and, if deployment was
30742 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Proposed Rules
activated by a dual engine shutdown, could Compliance (2) Prior to the next in-flight or on-ground
also result in loss of hydraulic power for the (f) You are responsible for having the functional test of the ADG, whichever occurs
flight controls [and consequent reduced actions required by this AD performed within first after the effective date of this AD, or
ability of the flightcrew to maintain the safe the compliance times specified, unless the (3) Prior to the next in-flight or on-ground
flight and landing of the airplane]. actions have already been done. operational test of the ADG, whichever
This [Canadian] directive mandates occurs first after the effective date of this AD,
Actions
checking of the ADG and replacing the or
balance washer screws, if required. It also (g) At the earliest of the times identified in
(4) Prior to the next scheduled ADG in-
prohibits future installation of unmodified paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of
this AD, do an inspection to determine the flight deployment.
ADGs. (h) If the ADG serial number, as
serial number of the installed ADG. A review
Note: ADGs with Hamilton Sundstrand P/ determined in paragraph (g) of this AD, is not
of airplane maintenance records is acceptable
Ns in the 761339 series and 1711405 are in lieu of this inspection if the serial number listed in paragraph 1.A of the applicable
installed on the aircraft model listed in the of the ADG can be conclusively determined Bombardier Service Bulletin listed in Table
Applicability section above in addition to from that review. 1 of this AD, no further action is required by
Bombardier Inc. Models CL–600–2B19, CL– (1) Within 400 flight hours or 12 months this AD, except for paragraph (j) of this AD.
600–2C10 and CL–600–2D24. The latter three after the effective date of this AD, whichever
models are covered in a separate directive. occurs first, or
TABLE 1—SERVICE BULLETINS

Bombardier service
Model— Dated—
bulletin—
CL–600–2B16 (CL–604) airplanes ......................................................................................................... 604–24–021 ........... July 13, 2009.

CL–600–2B16 (CL–605) airplanes ......................................................................................................... 605–24–001 ........... July 13, 2009.
(i) If the ADG serial number determined in Other FAA AD Provisions Issued in Renton, Washington, on April 30,
paragraph (g) of this AD is identified in (k) The following provisions also apply to 2010.
paragraph 1.A. of the applicable service this AD: Ali Bahrami,
bulletin listed in Table 1 of this AD, before (1) Alternative Methods of Compliance Manager, Transport Airplane Directorate,
further flight, do an inspection to determine (AMOCs): The Manager, New York Aircraft Aircraft Certification Service.
if the symbol ‘‘24–5’’ is marked on the ADG Certification Office (ACO), ANE–170, FAA, [FR Doc. 2010–13230 Filed 6–1–10; 8:45 am]
identification plate. A review of airplane has the authority to approve AMOCs for this BILLING CODE 4910–13–P
maintenance records is acceptable in lieu of AD, if requested using the procedures found
this inspection if the symbol ‘‘24–5’’ can be in 14 CFR 39.19. Send information to ATTN:
conclusively determined from that review. Program Manager, Continuing Operational DEPARTMENT OF TRANSPORTATION
(1) If the symbol ‘‘24–5’’ is marked on the Safety, FAA, New York ACO, 1600 Stewart
ADG identification plate, and the balance Avenue, Suite 410, Westbury, New York, Federal Aviation Administration
washer screws have already been replaced, 11590; telephone 516–228–7300; fax 516–
no further action is required by this AD, 794–5531.Before using any approved AMOC
14 CFR Part 65
except for paragraph (j) of this AD. on any airplane to which the AMOC applies,
(2) If the symbol ‘‘24–5’’ is not marked on notify your principal maintenance inspector [Docket No. FAA–2010–0567; Notice No.
the ADG identification plate, before further (PMI) or principal avionics inspector (PAI), 10–09]
flight, replace all balance washer screws with as appropriate, or lacking a principal
RIN 2120–AJ66
new screws having part number MS24667–14 inspector, your local Flight Standards District
and mark the ADG identification plate with Office. The AMOC approval letter must
Modification of the Process for
symbol ‘‘24–5,’’ in accordance with the specifically reference this AD.
(2) Airworthy Product: For any
Requesting a Waiver of the Mandatory
Accomplishment Instructions of the
requirement in this AD to obtain corrective Separation Age of 56 for Air Traffic
applicable service bulletin listed in Table 1
of this AD. actions from a manufacturer or other source, Control Specialists
(j) As of the effective date of this AD, no use these actions if they are FAA-approved. AGENCY: Federal Aviation
person may install on any airplane a Corrective actions are considered FAA-
Administration (FAA), DOT.
replacement or spare ADG, Hamilton approved if they are approved by the State
of Design Authority (or their delegated ACTION: Notice of proposed rulemaking
Sundstrand part number in the 761339 or
agent). You are required to assure the product (NPRM).
1711405 series, having one of the serial
numbers identified in paragraph 1.A. of the is airworthy before it is returned to service.
(3) Reporting Requirements: For any SUMMARY: The Federal Aviation
applicable service bulletin listed in Table 1 Administration (FAA) proposes to
reporting requirement in this AD, under the
of this AD, unless the ADG is identified with amend its regulations concerning the
provisions of the Paperwork Reduction Act
the symbol ‘‘24–5’’ on the identification plate. process for requesting a waiver of the
(44 U.S.C. 3501 et seq.), the Office of
FAA AD Differences Management and Budget (OMB) has mandatory separation age for Air Traffic
approved the information collection Control Specialists in flight service
Note 2: This AD differs from the MCAI requirements and has assigned OMB Control stations, enroute or terminal facilities,
and/or service information as follows: The Number 2120–0056.
MCAI specifies to inspect only airplanes

and the David J. Hurley Air Traffic
having certain serial numbers that are part of Related Information Control System Command Center.
the MCAI applicability. Because the affected (l) Refer to MCAI Canadian Airworthiness
Under the proposal, Air Traffic Control
part could be rotated onto any of the Directive CF–2009–50, dated December 17, Specialists would no longer be required
airplanes listed in the applicability, this AD 2009; and Bombardier Service Bulletins 604– to certify they have not been involved
requires the inspection be done on all 24–021, dated July 13, 2009, and 605–24– in an operational error (OE), operational
airplanes. We have coordinated this 001, dated July 13, 2009; for related deviation (OD), or runway incursion in
difference with TCCA. information. the past 5 years. The proposed change
reflects FAA Order JO 7210.56C, Change proposed rule contact Kelly J. reflected in the Human Resources Policy
2, effective July 20, 2009, which Neubecker, Airspace and Rules Group, Bulletin #35, Waiver Process to
removed any references to employee Office of System Operations Airspace Mandatory Separation at Age 56. This
identification, training record entries, and AIM, AJR–33, Federal Aviation policy applies to all ATCSs and their
performance management, and return- Administration, 800 Independence first-level supervisors in flight service,
to-duty actions that have been Avenue, SW., Washington, DC 20591; enroute and terminal facilities, and at
historically tied to reported events. The telephone (202) 267–9235; facsimile the David J. Hurley Air Traffic Control
proposal would streamline the waiver (202) 267–9328, e-mail System Command Center covered under
process and bring it into conformance Kelly.Neubecker@faa.gov. For legal the mandatory separation provisions of
with current FAA OE and OD reporting questions concerning this proposed rule
5 U.S.C. 8335(a) and 8425(a).
policy. contact Anne Moore, Office of Chief
Counsel, AGC–240, Federal Aviation The regulation, as written, contains
DATES: Send your comments on or
before July 2, 2010. Administration, 800 Independence information contrary to air traffic policy
Avenue, SW., Washington, DC 20591; under amended FAA Order JO
ADDRESSES: You may send comments
telephone (202) 267–3123; facsimile 7210.56C, Change 2, effective July 20,
identified by Docket Number FAA–
(202) 267–7971. 2009. Specifically, paragraph 5.b.vii. of
2010–0567 using any of the following
methods: SUPPLEMENTARY INFORMATION: Later in SFAR 103 requires a controller to
• Federal eRulemaking Portal: Go to this preamble under the Additional provide a statement that they have not
http://www.regulations.gov and follow Information section, we discuss how been involved in an operational error
the online instructions for sending your you can comment on this proposal and (OE), operational deviation (OD), or
comments electronically. how we will handle your comments. runway incursion in the last 5 years
• Mail: Send comments to Docket Included in this discussion is related while in a control position. This
Operations, M–30; U.S. Department of information about the docket, privacy, requirement is inconsistent with current
Transportation, 1200 New Jersey and the handling of proprietary or air traffic orders developed specifically
Avenue, SE., Room W12–140, West confidential business information. We to foster a safety culture that encourages
Building Ground Floor, Washington, DC also discuss how you can get a copy of full and open reporting of safety
20590–0001. related rulemaking documents. information and focuses on determining
• Hand Delivery or Courier: Take Authority for This Rulemaking why events occur, rather than placing
comments to Docket Operations in blame. In support of this safety culture,
The FAA’s authority to issue rules
Room W12–140 of the West Building FAA Order JO 7210.56C, Change 2
regarding aviation safety is found in
Ground Floor at 1200 New Jersey removed all references to employee
Title 49 of the United States Code.
Avenue, SE., Washington, DC, between Subtitle I, section 106, describes the identification, training record entries,
9 a.m. and 5 p.m., Monday through authority of the FAA Administrator to performance management, and return-
Friday, except Federal holidays. issue, rescind, and revise regulations. to-duty actions that were historically
• Fax: Fax comments to Docket tied to reported OE or OD events. Due
Under this authority, we are proposing
Operations at 202–493–2251. to amend Special Federal Aviation to this change in policy, the reporting
For more information on the
Regulation No. 103 in 14 CFR part 65 requirements of SFAR 103 5.b.vii. are
rulemaking process, see the
(SFAR 103) by removing paragraph now unverifiable. Continuing to require
SUPPLEMENTARY INFORMATION section of
5.b.vii. The proposed change is within the statement in the waiver process
this document. the scope of our authority and is a
Privacy: We will post all comments serves no useful purpose. Therefore, the
reasonable and necessary exercise of our FAA is proposing to remove this
we receive, without change, to http://
statutory obligations. reporting requirement.
www.regulations.gov, including any
personal information you provide. Background Paperwork Reduction Act
Using the search function of our docket On January 23, 2004, H.R. 2673,
Web site, anyone can find and read the Consolidated Appropriations 2004, The Paperwork Reduction Act of 1995
electronic form of all comments became Public Law 108–199. Within the (44 U.S.C. 3507(d)) requires that the
received into any of our dockets, appropriations bill, there was a mandate FAA consider the impact of paperwork
including the name of the individual that ‘‘not later than March 1, 2004, the and other information collection
sending the comment (or signing the Secretary of Transportation, in burdens imposed on the public. We
comment for an association, business, consultation with the Administrator of have determined that there is no new
labor union, etc.). You may review the Federal Aviation Administration, information collection requirement
DOT’s complete Privacy Act Statement shall issue final regulations, pursuant to associated with this proposed rule.
in the Federal Register published on 5 U.S.C. 8335, establishing an
April 11, 2000 (65 FR 19477–78) or you exemption process allowing individual International Compatibility
may visit http://DocketsInfo.dot.gov. Air Traffic Controllers to delay
Docket: To read background In keeping with U.S. obligations
mandatory retirement until the
documents or comments received, go to under the Convention on International
employee reaches no later than 61 years
http://www.regulations.gov at any time of age.’’ On January 7, 2005, the Civil Aviation, it is FAA policy to
and follow the online instructions for Department of Transportation, Federal comply with International Civil
accessing the docket, or, the Docket Aviation Organization (ICAO) Standards
Aviation Administration, published the

Operations in Room W12–140 of the final rule in the Federal Register, 14 and Recommended Practices to the
West Building Ground Floor at 1200 CFR part 65 (Docket No. FAA–2004– maximum extent practicable. The FAA
New Jersey Avenue, SE., Washington, 17334; SFAR No. 103, 70 FR 1634). has determined that there are no ICAO
DC, between 9 a.m. and 5 p.m., Monday The process for an Air Traffic Control Standards and Recommended Practices
through Friday, except Federal holidays. Specialist (ATCS) to request a waiver that correspond to these proposed
FOR FURTHER INFORMATION CONTACT: For from the mandatory separation age of 56 regulations.
technical questions concerning this is currently contained in SFAR 103 and
Regulatory Evaluation, Regulatory written assessment of the costs, benefits, paperwork obstacle. Currently, ATCSs
Flexibility Determination, International and other effects of proposed or final need to provide a statement to certify
Trade Impact Assessment, and rules that include a Federal mandate that they have not been involved with
Unfunded Mandates Assessment likely to result in the expenditure by an operational error (OE), operational
State, local, or tribal governments, in the deviation (OD), or runway incursion
Changes to Federal regulations must aggregate, or by the private sector, of within the previous 5 years when
undergo several economic analyses. $100 million or more annually (adjusted submitting a request for a waiver of the
First, Executive Order 12866 directs that for inflation with base year of 1995). mandatory separation at age 56. This
each Federal agency shall propose or This portion of the preamble proposed rule would eliminate this
adopt a regulation only upon a reasoned summarizes the FAA’s analysis of the certification requirement by reducing
determination that the benefits of the economic impacts of this proposed rule. the written information ATCSs must
intended regulation justify its costs. Department of Transportation Order provide, resulting in a cost saving.
Second, the Regulatory Flexibility Act DOT 2100.5 prescribes policies and We estimate ATCSs submit an average
of 1980 (Pub. L. 96–354) requires procedures for simplification, analysis, of 54 statements per year. ATCSs need
agencies to analyze the economic and review of regulations. If the approximately 5 minutes to prepare
impact of regulatory changes on small expected cost impact is so minimal that each statement, whereas air traffic
entities. Third, the Trade Agreements a proposed or final rule does not managers need approximately 15
Act (Pub. L. 96–39) prohibits agencies warrant a full evaluation, this order minutes to review them. The ATCS’s
from setting standards that create permits that a statement to that effect salary including benefits expressed as
unnecessary obstacles to the foreign and the basis for it be included in the an hourly wage rate is assumed to be
commerce of the United States. In preamble if a full regulatory evaluation $125 per hour; 1 and an air traffic
developing U.S. standards, this Trade of the cost and benefits is not prepared. manager’s hourly rate with benefits is
Act requires agencies to consider Such a determination has been made for assumed to be $155 per hour.
international standards and, where this proposed rule. Using the preceding information, the
appropriate, that they be the basis of This proposed rule would moderately FAA estimates that the total cost savings
U.S. standards. Fourth, the Unfunded streamline the process for ATCs who are of this proposed rule would be about
Mandates Reform Act of 1995 (Pub. L. requesting a waiver of mandatory $26,000 or $18,000 present value, as
104–4) requires agencies to prepare a separation at age 56 by eliminating a shown in table 1.
FAA has, therefore, determined that of the businesses, organizations, and substantial number of small entities. If
this proposed rule is not a ‘‘significant governmental jurisdictions subject to the agency determines that it will, the
regulatory action’’ as defined in section regulation. To achieve this principle, agency must prepare a regulatory
3(f) of Executive Order 12866, and is not agencies are required to solicit and flexibility analysis as described in the
‘‘significant’’ as defined in DOT’s consider flexible regulatory proposals RFA.
Regulatory Policies and Procedures. and to explain the rationale for their However, if an agency determines that
actions to assure that such proposals are
Regulatory Flexibility Determination a rule is not expected to have a
given serious consideration.’’ The RFA
significant economic impact on a
The Regulatory Flexibility Act of 1980 covers a wide range of small entities,
substantial number of small entities,
(Pub. L. 96–354) (RFA) establishes ‘‘as a including small businesses, not-for-
profit organizations, and small section 605(b) of the RFA provides that
principle of regulatory issuance that the head of the agency may so certify
agencies shall endeavor, consistent with governmental jurisdictions.
and a regulatory flexibility analysis is
the objectives of the rule and of Agencies must perform a review to not required. The certification must
applicable statutes, to fit regulatory and determine whether a rule will have a include a statement providing the
informational requirements to the scale significant economic impact on a
1 This wage rate is based on 1657.7 hours. 2,080 422.3 hours (the number of hours a typical
EP02JN10.309</GPH>
hours (52 weeks times 40 hours per week) minus controller is not available to work) equals 1,657.7.
factual basis for this determination, and levels of government, and, therefore, Availability of Rulemaking Documents
the reasoning should be clear. would not have federalism implications.
This proposed rule would help extend You can get an electronic copy of
Environmental Analysis rulemaking documents using the
the careers of experienced air traffic
controllers and thus have no impact on FAA Order 1050.1E identifies FAA Internet by—
private sector entities. Consequently, actions that are categorically excluded 1. Searching the Federal eRulemaking
the FAA certifies that the proposed rule from preparation of an environmental Portal (http://www.regulations.gov);
would not have a significant economic assessment or environmental impact 2. Visiting the FAA’s Regulations and
impact on a substantial number of small statement under the National Policies Web page at http://
entities. Environmental Policy Act in the www.faa.gov/regulations_policies or
absence of extraordinary circumstances.
International Trade Impact Assessment 3. Accessing the Government Printing
The FAA has determined this proposed
The Trade Agreements Act of 1979 rulemaking action qualifies for the Office’s Web page at http://
(Pub. L. 96–39), as amended by the categorical exclusion identified in www.gpoaccess.gov/fr/index.html.
Uruguay Round Agreements Act (Pub. paragraph 312(d) and involves no You can also get a copy by sending a
L. 103–465), prohibits Federal agencies extraordinary circumstances. request to the Federal Aviation
from establishing standards or engaging Administration, Office of Rulemaking,
Regulations That Significantly Affect
in related activities that create ARM–1, 800 Independence Avenue,
Energy Supply, Distribution, or Use
unnecessary obstacles to the foreign SW., Washington, DC 20591, or by
commerce of the United States. The FAA has analyzed this NPRM calling (202) 267–9680. Make sure to
Pursuant to these Acts, the under Executive Order 13211, Actions identify the docket number, notice
establishment of standards is not Concerning Regulations that number, or amendment number of this
considered an unnecessary obstacle to Significantly Affect Energy Supply, rulemaking.
the foreign commerce of the United Distribution, or Use (May 18, 2001). We
States, so long as the standard has a have determined that it is not a You may access all documents the
legitimate domestic objective, such the ‘‘significant regulatory action’’ under the FAA considered in developing this
protection of safety, and does not executive order because while it is not proposed rule, including economic
operate in a manner that excludes a ‘‘significant regulatory action’’ under analyses and technical reports, from the
imports that meet this objective. The Executive Order 12866, and DOT’s internet through the Federal
statute also requires consideration of Regulatory Policies and Procedures, it is eRulemaking Portal referenced in
international standards and, where not likely to have a significant adverse paragraph (1).
appropriate, that they be the basis for effect on the supply, distribution, or use
U.S. standards. The FAA has assessed List of Subjects in 14 CFR Part 65
of energy.
the potential effect of this proposed rule Air Traffic Controllers, Aircraft,
and determined that it would have only Additional Information
Aviation safety.
a domestic impact and therefore no Comments Invited
effect on international trade. The Proposed Amendment
The FAA invites interested persons to
Unfunded Mandates Assessment participate in this rulemaking by In consideration of the foregoing, the
Title II of the Unfunded Mandates submitting written comments, data, or Federal Aviation Administration
Reform Act of 1995 (Pub. L. 104–4) views. We also invite comments relating proposes to amend Chapter I of Title 14,
requires each Federal agency to prepare to the economic, environmental, energy, Code of Federal Regulations, as follows:
a written statement assessing the effects or federalism impacts that might result
of any Federal mandate in a proposed or from adopting the proposals in this PART 65—CERTIFICATION: AIRMEN
final agency rule that may result in an document. The most helpful comments OTHER THAN FLIGHT
expenditure of $100 million or more (in reference a specific portion of the CREWMEMBERS
1995 dollars) in any one year by State, proposal, explain the reason for any
local, and tribal governments, in the recommended change, and include 1. The authority citation for part 65
aggregate, or by the private sector; such supporting data. To ensure the docket continues to read as follows:
a mandate is deemed to be a ‘‘significant does not contain duplicate comments, Authority: 49 U.S.C. 106(g). 40113, 44701–
regulatory action.’’ The FAA currently please send only one copy of written 44703, 44707, 44709–44711, 45102–45103,
uses an inflation-adjusted value of comments, or if you are filing comments 45301–45302.
$143.1 million in lieu of $100 million. electronically, please submit your
This proposed rule does not contain comments only one time. SFAR 103 [Amended]
such a mandate; therefore, the We will file in the docket all 2. Amend SFAR 103 by removing and
requirements of Title II of the Act do not comments we receive, as well as a reserving paragraph 5.b.vii.
apply. report summarizing each substantive
public contact with FAA personnel Issued in Washington, DC, on May 27,
Executive Order 13132, Federalism 2010.
concerning this proposed rulemaking.
The FAA has analyzed this proposed Before acting on this proposal, we will Edie Parish,
rule under the principles and criteria of consider all comments we receive on or Acting Director, System Operations Airspace
Executive Order 13132, Federalism. We before the closing date for comments. & Aeronautical Information Management.
determined that this action would not We will consider comments filed after [FR Doc. 2010–13221 Filed 6–1–10; 8:45 am]
have a substantial direct effect on the the comment period has closed if it is BILLING CODE 4910–13–P
States, on the relationship between the possible to do so without incurring
national Government and the States, or expense or delay. We may change this
on the distribution of power and proposal in light of the comments we
responsibilities among the various receive.
DEPARTMENT OF TRANSPORTATION about/office_org/headquarters_offices/ Group. Persons interested in being

ato/service_units/systemops/fs/alaskan/ placed on a mailing list for future
Federal Aviation Administration rulemaking/. NPRM’s should contact the FAA’s
SUPPLEMENTARY INFORMATION: Office of Rulemaking, (202) 267–9677,
14 CFR Part 71 to request a copy of Advisory Circular
Comments Invited No. 11–2A, Notice of Proposed
[Docket No. FAA–2010–0445 Airspace
Docket No. 10–AAL–13] Interested parties are invited to Rulemaking Distribution System, which
participate in this proposed rulemaking describes the application procedure.
Proposed Revocation and by submitting such written data, views,
The Proposal
Establishment of Class E Airspace; or arguments as they may desire.
Northeast, AK Comments that provide the factual basis This action proposes to amend Title
supporting the views and suggestions 14 Code of Federal Regulations (14 CFR)
AGENCY: Federal Aviation presented are particularly helpful in part 71 by revoking and establishing
Administration (FAA), DOT. developing reasoned regulatory Class E airspace in Northeast Alaska, to
ACTION: Notice of proposed rulemaking decisions on the proposal. Comments accommodate a removed Colored
(NPRM). are specifically invited on the overall Federal Airway (G16), duplication of
regulatory, aeronautical, economic, controlled airspace near Mentasta Lake,
SUMMARY: This action proposes to environmental, and energy-related AK, and the establishment of a new
revoke and establish Class E airspace in aspects of the proposal. Special SIAP at Eagle Airport, AK. The
Northeast Alaska. The recent removal of Communications should identify both new Class E airspace would provide
a Colored Federal Airway near docket numbers and be submitted in adequate controlled airspace upward
Kaktovik, AK, duplication of controlled triplicate to the address listed above. from 1,200 feet above the surface, to
airspace near Mentasta Lake, AK, and Commenters wishing the FAA to allow commercial air operations
the establishment of one Special Area acknowledge receipt of their comments through what is now uncontrolled
Navigation Standard Instrument on this notice must submit with those airspace above 1,200 feet. Air carriers
Approach Procedure (SIAP) at Eagle comments a self-addressed, stamped providing service to Eagle, AK, must
Airport, AK, have made these actions postcard on which the following currently operate under Visual Flight
necessary to enhance safety and statement is made: ‘‘Comments to Rules (VFR). With the establishment of
management of Instrument Flight Rules Docket No. FAA–2010–0445/Airspace an instrument approach at Eagle
(IFR) operations. Docket No. 10–AAL–13.’’ The postcard Airport, the uncontrolled airspace
DATES: Comments must be received on will be date/time stamped and returned primarily extending to the west from the
or before July 19, 2010. to the commenter. Eagle Airport, must be converted into
All communications received on or controlled airspace. In the case of
ADDRESSES: Send comments on the
before the specified closing date for Eagle’s instrument approach, the
proposal to the Docket Management
comments will be considered before necessary controlled airspace will not
Facility, U.S. Department of
taking action on the proposed rule. The extend far enough westward to connect
Transportation, 1200 New Jersey
proposal contained in this notice may with controlled airspace to the west.
Avenue, SE., West Building Ground
be changed in light of comments The required airspace designation is
Floor, Room W12–140, Washington, DC classified as E6 Enroute Domestic
received. All comments submitted will
20590–0001. You must identify the Airspace and is provided for the safety
be available for examination in the
docket number FAA–2010–0445/ and management of IFR operations
public docket both before and after the
Airspace Docket No. 10–AAL–13 at the access at Eagle Airport. Additionally,
closing date for comments. A report
beginning of your comments. You may with the evolution and expansion of
summarizing each substantive public
also submit comments on the Internet at controlled airspace serving the airports
contact with FAA personnel concerned
http://www.regulations.gov. You may of Tok Junction, Northway and Gulkana
with this rulemaking will be filed in the
review the public docket containing the AK, the Mentasta Lake/Mountains Area
docket.
proposal, any comments received, and Class E6 Enroute Airspace is no longer
any final disposition in person in the Availability of NPRMs necessary.
Dockets Office between 9 a.m. and 5 An electronic copy of this document The Class E airspace areas designated
p.m., Monday through Friday, except may be downloaded through the as 700/1200 foot transition areas are
Federal holidays. The Docket Office Internet at http://www.regulations.gov. published in paragraph 6006 in FAA
(telephone 1–800–647–5527) is on the Recently published rulemaking Order 7400.9T, Airspace Designations
plaza level of the Department of documents can also be accessed through and Reporting Points, signed August 27,
Transportation NASSIF Building at the the FAA’s Web page at http:// 2009, and effective September 15, 2009,
above address. www.faa.gov/airports_airtraffic/ which is incorporated by reference in 14
An informal docket may also be air_traffic/publications/ CFR 71.1. The Class E airspace
examined during normal business hours airspace_amendments/. designations listed in this document
at the office of the Manager, Safety, You may review the public docket would be subsequently published in the
Alaska Flight Service Operations, containing the proposal, any comments Order.
Federal Aviation Administration, 222 received, and any final disposition, in The FAA has determined that this
West 7th Avenue, Box 14, Anchorage, person in the Federal Docket proposed regulation only involves an
AK 99513–7587.
Management System Office (see established body of technical

FOR FURTHER INFORMATION CONTACT: Gary ADDRESSES section for address and regulations for which frequent and
Rolf, Federal Aviation Administration, phone number) between 9 a.m. and 5 routine amendments are necessary to
222 West 7th Avenue, Box 14, p.m., Monday through Friday, except keep them operationally current. It,
Anchorage, AK 99513–7587; telephone Federal holidays. An informal docket therefore—(1) is not a ‘‘significant
number (907) 271–5898; fax: (907) 271– may also be examined during normal regulatory action’’ under Executive
2850; e-mail: gary.ctr.rolf@faa.gov. business hours at the office of the Order 12866; (2) is not a ‘‘significant
Internet address: http://www.faa.gov/ Alaska Flight Services Information Area rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February Paragraph 6006 En Route Domestic (1) Federal eRulemaking Portal:
26, 1979); and (3) does not warrant Airspace Areas. http://www.regulations.gov.
preparation of a regulatory evaluation as * * * * * (2) Fax: 202–493–2251.
the anticipated impact is so minimal. (3) Mail: Docket Management Facility
AAL AK E6 Northeast, AK [New]
Because this is a routine matter that will (M–30), U.S. Department of
only affect air traffic procedures and air That airspace extending upward from 1,200 Transportation, West Building Ground
navigation, it is certified that this rule, feet above the surface within an area Floor, Room W12–140, 1200 New Jersey
when promulgated, will not have a beginning at lat. 63°55′00″ N. long. Avenue, SE., Washington, DC 20590–
141°00′00″ W., then westward along a line of
significant economic impact on a 0001.
latitude to 63°55′00″ N. long 144°00′00″ W.,
substantial number of small entities to 65°30′00″ N. long 144°00′00″ W., then (4) Hand delivery: Same as mail
under the criteria of the Regulatory eastward along a line of latitude to 65°30′00″ address above, between 9 a.m. and
Flexibility Act. N. 144°00′00″ W., to the point of beginning. 5 p.m., Monday through Friday, except
The FAA’s authority to issue rules * * * * * Federal holidays. The telephone number
regarding aviation safety is found in is 202–366–9329.
AAL AK E6 Barter Island, AK [Removed] To avoid duplication, please use only
Title 49 of the United States Code.
Subtitle 1, section 106 describes the * * * * * one of these four methods. See the
authority of the FAA Administrator. AAL AK E6 Mentasta Lake/Mountains
‘‘Public Participation and Request for
Subtitle VII, Aviation Programs, Area, AK [Removed] Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
describes in more detail the scope of the
Issued in Anchorage, AK, on May 7, 2010. below for instructions on submitting
agency’s authority.
Anthony M. Wylie, comments.
This rulemaking is promulgated Manager, Alaska Flight Services Information FOR FURTHER INFORMATION CONTACT: If
under the authority described in subtitle Area Group.
VII, part A, subpart 1, section 40103, you have questions on this proposed
[FR Doc. 2010–13138 Filed 6–1–10; 8:45 am] rule, call or e-mail Coast Guard;
Sovereignty and use of airspace. Under
that section, the FAA is charged with
BILLING CODE 4910–13–P telephone 757–398–6629, e-mail
prescribing regulations to ensure the Lindsey.R.Middleton@uscg.mil. If you
safe and efficient use of the navigable have questions on viewing or submitting
airspace. This regulation is within the DEPARTMENT OF HOMELAND material to the docket, call Renee V.
scope of that authority because it SECURITY Wright, Program Manager, Docket
proposes to revoke Class E airspace in Operations, telephone 202–366–9826.
Coast Guard
Northeast Alaska, and establish Class E SUPPLEMENTARY INFORMATION:
airspace to allow access at Eagle 33 CFR Part 117 Public Participation and Request for
Airport, Eagle, AK, and represents the Comments
FAA’s continuing effort to safely and [Docket No. USCG–2010–0265]
efficiently use the navigable airspace. We encourage you to participate in
RIN 1625–AA09
this rulemaking by submitting
List of Subjects in 14 CFR Part 71 comments and related materials. All
Drawbridge Operation Regulation;
Curtis Creek, Baltimore, MD comments received will be posted,
Airspace, Incorporation by reference,
without change to http://
Navigation (air). AGENCY: Coast Guard, DHS. www.regulations.gov and will include
The Proposed Amendment ACTION: Notice of proposed rulemaking. any personal information you have
provided.
In consideration of the foregoing, the SUMMARY: The Coast Guard proposes to
Federal Aviation Administration change the regulations that govern the Submitting Comments
proposes to amend 14 CFR part 71 as operation of the Pennington Avenue If you submit a comment, please
follows: Bridge across Curtis Creek, at mile 0.9, include the docket number for this
in Baltimore, MD. The proposed rule rulemaking (USCG–2010–0265),
PART 71—DESIGNATION OF CLASS A, would eliminate the need for a bridge indicate the specific section of this
CLASS B, CLASS C, CLASS D, AND tender by allowing the bridge to be document to which each comment
CLASS E AIRSPACE AREAS; AIR operated from a remote location at the applies, and provide a reason for each
TRAFFIC SERVICE ROUTES; AND City of Baltimore Transportation suggestion or recommendation. You
REPORTING POINTS Management Center. This proposed may submit your comments and
change would maintain the bridge’s material online (http://
1. The authority citation for 14 CFR current level of operational capabilities www.regulations.gov), or by fax, mail or
part 71 continues to read as follows: and continue providing for the hand delivery, but please use only one
Authority: 49 U.S.C. 106(g), 40103, 40113, reasonable needs of vehicular of these means. If you submit a
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– transportation and vessel navigation. comment online via http://
1963 Comp., p. 389. This proposed rule will also correct the www.regulations.gov, it will be
statute mile marker of the I695 Bridge considered received by the Coast Guard
§ 71.1 [Amended]
which is also across Curtis Creek in when you successfully transmit the
2. The incorporation by reference in Baltimore, MD.
comment. If you fax, hand deliver, or

14 CFR 71.1 of Federal Aviation DATES: Comments and related material mail your comment, it will be
Administration Order 7400.9T, Airspace must reach the Coast Guard on or before considered as having been received by
Designations and Reporting Points, August 2, 2010. the Coast Guard when it is received at
signed August 27, 2009, and effective ADDRESSES: You may submit comments the Docket Management Facility. We
September 15, 2009, is to be amended identified by docket number USCG– recommend that you include your name
as follows: 2010–0265 using any one of the and a mailing address, an e-mail
* * * * * following methods: address, or a phone number in the body
of your document so that we can contact Background and Purpose blast to warn of bridge movement. The
you if we have questions regarding your The City of Baltimore has requested a channel traffic lights will flash red
submission. change to the operating procedures for continually to indicate that the bridge is
To submit your comment online, go to the Pennington Avenue Bridge across moving to the full open position for
http://www.regulations.gov, click on the Curtis Creek, mile 0.9 in Baltimore, MD. vessels. Once the bridge is in the fully
‘‘submit a comment’’ box, which will The change in the operating procedure open position, the bridge channel traffic
then become highlighted in blue. In the would allow the bridge to be operated lights will turn and remain green. The
‘‘Document Type’’ drop down menu from a remote location at the City of draw of the bridge must begin opening
select ‘‘Proposed Rules’’ and insert Baltimore Transportation Management within 5 minutes of vehicular and
‘‘USCG–2010–0265’’ in the ‘‘Keyword’’ Center. This proposed rule follows the pedestrian traffic clearing the bridge
box. Click ‘‘Search’’ then click on the general regulations set out at 33 CFR except as provided in 33 CFR 117.31(b).
balloon shape in the ‘‘Actions’’ column. 117.5 that states: Drawbridges shall Before the span begins to close, the
If you submit your comments by mail or open promptly and fully for the passage horn will sound five short blasts and an
hand delivery, submit them in an of vessels when a request to open is audio voice-warning device will
unbound format, no larger than 81⁄2 by given. announce bridge movement. The
11 inches, suitable for copying and The Pennington Avenue Bridge, a lift- channel traffic lights will then
electronic filing. If you submit them by type drawbridge, has a vertical continually flash red until the bridge is
mail and would like to know that they clearance in the closed position to seated and locked down to vessels.
reached the Facility, please enclose a vessels of 38 feet, above mean high Paragraph (b) would contain the
stamped, self-addressed postcard or water. existing regulations for the I695 Bridge;
envelope. We will consider all The City of Baltimore is installing six however, the statute mile marker of 0.9
comments and material received during video cameras on the bridge to enhance is incorrect and will be changed to mile
the comment period and may change the remote operator’s ability to monitor 1.0 which is the accurate mile mark.
the rule based on your comments. and control the equipment. The remote Regulatory Analyses
Viewing Comments and Documents office and the bridge site will be
equipped with audio devices to enable We developed this proposed rule after
To view comments, as well as the remote operator to hear boat horns considering numerous statutes and
documents mentioned in this preamble that may signal for an opening as well executive orders related to rulemaking.
as being available in the docket, go to as two-way communication. There will Below we summarize our analyses
http://www.regulations.gov, click on the be posted signs placed on both sides of based on 13 of these statutes or
‘‘read comments’’ box, which will then the navigational channel providing a executive orders.
become highlighted in blue. In the phone number for vessels to call to Regulatory Planning and Review
‘‘Keyword’’ box insert ‘‘USCG–2010– request an opening. Warning lights will
0265’’ and click ‘‘Search.’’ Click the be installed on the bridge to signal when This proposed rule is not a
‘‘Open Docket Folder’’ in the ‘‘Actions’’ the bridge is in operation. All aspects of ‘‘significant regulatory action’’ under
column. You may also visit the Docket the current drawbridge operating section 3(f) of Executive Order 12866,
Management Facility in Room W12–140 regulations will remain the same. Regulatory Planning and Review, and
on the ground floor of the Department The City of Baltimore has requested does not require an assessment of
of Transportation West Building, 1200 this change to utilize new technology to potential costs and benefits under
New Jersey Avenue, SE., Washington, maintain the bridge’s current level of section 6(a)(3) of that Order. The Office
DC 20590, between 9 a.m. and 5 p.m., operating capabilities and continue of Management and Budget has not
Monday through Friday, except Federal providing for the reasonable needs of reviewed it under that Order.
holidays. We have an agreement with vehicular transportation and vessel We expect the economic impact of
the Department of Transportation to use navigation. this proposed rule to be so minimal that
the Docket Management Facility. a full Regulatory Evaluation under the
Discussion of Proposed Rule regulatory policies and procedures of
Privacy Act
The Coast Guard proposes to revise 33 DHS is unnecessary. We reached this
Anyone can search the electronic CFR 117.557. The current paragraph conclusion based on the fact that the
form of comments received into any of would be divided into paragraphs (a) proposed changes have only a minimal
our dockets by the name of the and (b). impact on maritime traffic transiting the
individual submitting the comment (or Paragraph (a) would contain the bridge. Although the Pennington
signing the comment, if submitted on proposed rule for the Pennington Avenue Bridge will be operated from a
behalf of an association, business, labor Avenue Bridge at mile 0.9 in Baltimore, remote office, mariners can continue
union, etc.). You may review a Privacy MD. The rule would allow the draw of their transits because all aspects of the
Act notice regarding our public dockets the bridge to be operated by the current operating regulations remain
in the January 17, 2008, issue of the controller at the Transportation essentially the same.
Federal Register (73 FR 3316). Management Center.
Small Entities
In the event of failure or obstruction
Public Meeting
of the video cameras, audio system, or Under the Regulatory Flexibility Act
We do not now plan to hold a public phone communications, the Pennington (5 U.S.C. 601–612), we have considered
meeting. But you may submit a request Avenue Bridge would not be operated whether this proposed rule would have
for one using one of the four methods from the remote office. In these a significant economic impact on a
specified under ADDRESSES. Please situations, a bridge tender must be substantial number of small entities.
explain why one would be beneficial. If called and be on-site within 30 minutes The term ‘‘small entities’’ comprises
we determine that one would aid this to operate the bridge. small businesses, not-for-profit
rulemaking, we will hold one at a time When vehicular and pedestrian traffic organizations that are independently
and place announced by a later notice has cleared, a horn will sound one owned and operated and are not
in the Federal Register. prolonged blast followed by one short dominant in their fields, and
governmental jurisdictions with Federal agencies to assess the effects of require a Statement of Energy Effects
populations of less than 50,000. their discretionary regulatory actions. In under Executive Order 13211.
The Coast Guard certifies under particular, the Act addresses actions
5 U.S.C. 605(b) that this proposed rule Technical Standards
that may result in the expenditure by a
would not have a significant economic State, local, or tribal government, in the The National Technology Transfer
impact on a substantial number of small aggregate, or by the private sector of and Advancement Act (NTTAA) (15
entities. $100,000,000 (adjusted for inflation) or U.S.C. 272 note) directs agencies to use
The proposed rule would not have a more in any one year. Though this voluntary consensus standards in their
significant economic impact on a proposed rule will not result in such an regulatory activities unless the agency
substantial number of small entities for expenditure, we do discuss the effects of provides Congress, through the Office of
the following reasons. The rule allows this rule elsewhere in this preamble. Management and Budget, with an
the Pennington Avenue Bridge to explanation of why using these
operate remotely and mariners will Taking of Private Property standards would be inconsistent with
continue to plan their transits in This proposed rule would not cause a applicable law or otherwise impractical.
accordance with the existing bridge taking of private property or otherwise Voluntary consensus standards are
operating regulations. have taking implications under technical standards (e.g., specifications
If you think that your business, Executive Order 12630, Governmental of materials, performance, design, or
organization, or governmental Actions and Interference with operation; test methods; sampling
jurisdiction qualifies as a small entity Constitutionally Protected Property procedures; and related management
and that this rule would have a Rights. systems practices) that are developed or
significant economic impact on it, adopted by voluntary consensus
Civil Justice Reform
please submit a comment (see standards bodies.
ADDRESSES) explaining why you think it This proposed rule meets applicable This proposed rule does not use
qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did
this rule would economically affect it. Executive Order 12988, Civil Justice not consider the use of voluntary
Reform, to minimize litigation, consensus standards.
Assistance for Small Entities eliminate ambiguity, and reduce
Under section 213(a) of the Small burden. Environment
Business Regulatory Enforcement We have analyzed this proposed rule
Protection of Children
Fairness Act of 1996 (Pub. L. 104–121), under Department of Homeland
we want to assist small entities in We have analyzed this proposed rule Security Management Directive 023–01,
understanding this proposed rule so that under Executive Order 13045, and Commandant Instruction
they can better evaluate its effects on Protection of Children from M16475.lD which guides the Coast
them and participate in the rulemaking. Environmental Health Risks and Safety Guard in complying with the National
If the rule would affect your small Risks. This rule is not an economically Environmental Policy Act of 1969
business, organization, or governmental significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and
jurisdiction and you have questions environmental risk to health or risk to have made a preliminary determination
concerning its provisions or options for safety that might disproportionately that this action is one of a category of
compliance, please contact Lindsey affect children. actions which do not individually or
Middleton, Bridge Specialist, Fifth Indian Tribal Governments cumulatively have a significant effect on
Coast Guard District, at (757) 368–6629 the human environment because it
or e-mail at This proposed rule does not have simply promulgates the operating
Lindsey.R.Middleton@uscg.mil. The tribal implications under Executive regulations or procedures for
Coast Guard will not retaliate against Order 13175, Consultation and drawbridges. We seek any comments or
small entities that question or complain Coordination with Indian Tribal information that may lead to the
about this proposed rule or any policy Governments, because it would not have discovery of a significant environmental
or action of the Coast Guard. a substantial direct effect on one or impact from this proposed rule.
more Indian tribes, on the relationship
Collection of Information between the Federal Government and List of Subjects in 33 CFR Part 117
This proposed rule would call for no Indian tribes, or on the distribution of Bridges.
new collection of information under the power and responsibilities between the For the reasons discussed in the
Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. preamble, the Coast Guard proposes to
U.S.C. 3501–3520.). Energy Effects amend 33 CFR part 117 as follows:
Federalism We have analyzed this proposed rule PART 117—DRAWBRIDGE
A rule has implications for federalism under Executive Order 13211, Actions OPERATION REGULATIONS
under Executive Order 13132, Concerning Regulations That
Federalism, if it has a substantial direct Significantly Affect Energy Supply, 1. The authority citation for part 117
effect on State or local governments and Distribution, or Use. We have continues to read as follows:
would either preempt State law or determined that it is not a ‘‘significant Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
impose a substantial direct cost of energy action’’ under that order because Department of Homeland Security Delegation
No. 0170.1.
compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’

this proposed rule under that Order and under Executive Order 12866 and is not 2. Revise § 117.557 to read as follows:
have determined that it does not have likely to have a significant adverse effect
implications for federalism. on the supply, distribution, or use of § 117.557 Curtis Creek.
energy. The Administrator of the Office (a) The Pennington Avenue Bridge,
Unfunded Mandates Reform Act of Information and Regulatory Affairs mile 0.9 at Baltimore.
The Unfunded Mandates Reform Act has not designated it as a significant (1) The draw of the bridge to be
of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not operated by the controller at the City of
Baltimore Transportation Management DEPARTMENT OF HOMELAND rule, call or e-mail Mr. Eric Washburn,
Center shall open on signal for the SECURITY Bridge Management Specialist, Eighth
passage of vessels when a request to Coast Guard District, Bridge Branch;
open is given. Coast Guard telephone 314–269–2378, e-mail
Eric.Washburn@uscg.mil. If you have
(2) The draw of the bridge shall not
33 CFR Part 117 questions on viewing or submitting
be operated by the controller at the
material to the docket, call Renee V.
Transportation Management Center [Docket No. USCG–2010–0228]
Wright, Program Manager, Docket
office in the event of failure or Operations, telephone 202–366–9826.
RIN 1625–AA09
obstruction of the video cameras, audio SUPPLEMENTARY INFORMATION:
system, or phone lines. In these Drawbridge Operation Regulation;
situations, a bridge tender must be Arkansas Waterway, Little Rock, AR Public Participation and Request for
called and be on-site within 30 minutes Comments
to operate the bridge on-site. AGENCY: Coast Guard, DHS. We encourage you to participate in
(3) The draw of the bridge must begin ACTION: Notice of proposed rulemaking. this rulemaking by submitting
opening within 5 minutes of the comments and related materials. All
SUMMARY: The Coast Guard proposes to
vehicular and pedestrian traffic clearing comments received will be posted,
revise the operating procedures on the without change to http://
the bridge, except as provided in 33 CFR Baring Cross Railroad Drawbridge across www.regulations.gov and will include
117.31(b). the Arkansas Waterway at mile 119.6 at any personal information you have
(4) When vehicular and pedestrian Little Rock, AR, so that vessel operators provided.
traffic has cleared, a horn will sound will contact the remote drawbridge
one prolonged blast followed by one operator via microphone keying four Submitting Comments
short blast to warn of bridge movement. times within five seconds on VHF–FM If you submit a comment, please
The channel traffic lights will flash red Channel 13 when requesting a draw include the docket number for this
continually to indicate that the Bridge is opening. This keying will activate an rulemaking (USCG–2010–0228),
moving to the full open position for indicator on the remote drawbridge indicate the specific section of this
vessels. Once the bridge is in the fully operator’s console and send an document to which each comment
acknowledgement tone back to the applies, and provide a reason for each
open position, the bridge channel traffic
vessel. The remote drawbridge operator suggestion or recommendation. You
lights will turn and remain green.
would then establish normal verbal may submit your comments and
(5) Before the span begins to close, the radio communications. The intent is to material online (http://
horn will sound five short blasts and an isolate and differentiate the vessel www.regulations.gov), or by fax, mail or
audio voice-warning device will operator radio communications from the hand delivery, but please use only one
announce bridge movement. The railroad communications that the of these means. If you submit a
channel traffic lights will then remote drawbridge operator receives, comment online via http://
continually flash red until the bridge is thus ensuring that vessel calls receive www.regulations.gov, it will be
seated and locked down to vessels. immediate attention. considered received by the Coast Guard
(6) The owners of the bridge shall DATES: Comments and related material when you successfully transmit the
provide and keep in good legible must reach the Coast Guard on or before comment. If you fax, hand deliver, or
August 2, 2010. mail your comment, it will be
condition two board gauges painted
ADDRESSES: You may submit comments
considered as having been received by
white with black figures not less than the Coast Guard when it is received at
six inches high to indicate the vertical identified by docket number USCG–
2010–0228 using any one of the the Docket Management Facility. We
clearance under the closed draw at all recommend that you include your name
stages of the tide. The gauges shall be following four methods:
and a mailing address, an e-mail
placed on the bridge so that they are (1) Federal eRulemaking Portal:
address, or a phone number in the body
plainly visible to the operator of any http://www.regulations.gov.
of your document so that we can contact
vessel approaching the bridge from (2) Fax: 202–493–2251.
you if we have questions regarding your
either upstream or downstream. (3) Mail: Docket Management Facility
submission.
(M–30), U.S. Department of To submit your comment online, go to
(b) The draw of the I695 Bridge, mile Transportation, West Building Ground
1.0 at Baltimore, shall open on signal if http://www.regulations.gov, click on the
Floor, Room W12–140, 1200 New Jersey ‘‘submit a comment’’ box, which will
at least a one-hour notice is given to the Avenue, SE., Washington, DC 20590–
Maryland Transportation Authority in then become highlighted in blue. In the
0001. ‘‘Document Type’’ drop down menu
Baltimore. (4) Hand Delivery: Same as mail select ‘‘Proposed Rules’’ and insert
Dated: May 14, 2010. address above, between 9 a.m. and 5 ‘‘USCG–2010–0228’’ in the ‘‘Keyword’’
Wayne E. Justice,
p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the
Federal holidays. The telephone number balloon shape in the ‘‘Actions’’ column.
Rear Admiral, United States Coast Guard, is 202–366–9329.
Commander, Fifth Coast Guard District. If you submit your comments by mail or
To avoid duplication, please use only hand delivery, submit them in an
[FR Doc. 2010–13119 Filed 6–1–10; 8:45 am] one of these four methods. See the
unbound format, no larger than 81⁄2 by

BILLING CODE 9110–04–P ‘‘Public Participation and Request for 11 inches, suitable for copying and
Comments’’ portion of the electronic filing. If you submit them by
SUPPLEMENTARY INFORMATION section
mail and would like to know that they
below for instructions on submitting reached the Facility, please enclose a
comments. stamped, self-addressed postcard or
FOR FURTHER INFORMATION CONTACT: If envelope. We will consider all
you have questions on this proposed comments and material received during
the comment period and may change that this drawbridge be operated place at a different bridge on the same
the rule based on your comments. similarly to how another Union Pacific- waterway and vessel operators are
owned drawbridge is operated, the Rob accustomed to the procedures.
Viewing Comments and Documents
Roy Drawbridge, mile 67.4 on the
To view comments, as well as Small Entities
Arkansas Waterway near Pine Bluff, AR
documents mentioned in this preamble where vessels key their microphone four Under the Regulatory Flexibility Act
as being available in the docket, go to times in five seconds in order to initiate (5 U.S.C. 601–612), we have considered
http://www.regulations.gov, click on the contact with the remote drawbridge whether this proposed rule would have
‘‘read comments’’ box, which will then operator. The same method would be a significant economic impact on a
become highlighted in blue. In the enacted at the Baring Cross Railroad substantial number of small entities.
‘‘Keyword’’ box insert ‘‘USCG–2010– Drawbridge. Vessel operators would key The term ‘‘small entities’’ comprises
0228’’ and click ‘‘Search.’’ Click the their microphones four times in five small businesses, not-for-profit
‘‘Open Docket Folder’’ in the ‘‘Actions’’ seconds and would receive an organizations that are independently
column. You may also visit the Docket acknowledgement tone from the remote owned and operated and are not
Management Facility in Room W12–140 drawbridge operator stationed at the dominant in their fields, and
on the ground floor of the Department Union Pacific Harriman Center in governmental jurisdictions with
of Transportation West Building, 1200 Omaha, NE. The keying-in initiates an populations of less than 50,000.
New Jersey Avenue SE., Washington, indicator on the remote drawbridge The Coast Guard certifies under 5
DC 20590, between 9 a.m. and 5 p.m., operator’s console and the remote U.S.C. 605(b) that this proposed rule
Monday through Friday, except Federal drawbridge operator will then establish would not have a significant economic
holidays. We have an agreement with normal verbal radio communications on impact on a substantial number of small
the Department of Transportation to use VHF–FM Channel 13. The Coast Guard entities. This proposed rule is neutral to
the Docket Management Facility. met with Union Pacific personnel at the all business entities since it only alters
Harriman Center to discuss the the initial contact between vessels and
Privacy Act
proposed changes. In addition, the Coast the drawbridge operator and the Baring
Anyone can search the electronic Guard did a test at the Harriman Center Cross Railroad Drawbridge is still
form of comments received into any of to witness how communications would required to open on demand for vessels.
our dockets by the name of the work and how the console is monitored. If you think that your business,
individual submitting the comment (or The Coast Guard has determined that organization, or governmental
signing the comment, if submitted on this regulatory change would improve jurisdiction qualifies as a small entity
behalf of an association, business, labor communications between the remote and that this rule would have a
union, etc.). You may review a Privacy drawbridge operator and vessel significant economic impact on it,
Act notice regarding our public dockets operators and reduce delays due to please submit a comment (see
in the January 17, 2008, issue of the missed calls by isolating vessel operator ADDRESSES) explaining why you think it
Federal Register (73 FR 3316). contacts from railroad contacts at the qualifies and how and to what degree
Public Meeting Harriman Center. this rule would economically affect it.
We do not now plan to hold a public Discussion of Proposed Rule Assistance for Small Entities
meeting. But you may submit a request The proposed changes to 33 CFR Under section 213(a) of the Small
for one using one of the four methods 117.123(b)(1) and (2) should enhance Business Regulatory Enforcement
specified under ADDRESSES. Please communications while reducing the Fairness Act of 1996 (Pub. L. 104–121),
explain why one would be beneficial. If number of missed calls and draw we want to assist small entities in
we determine that one would aid this opening delays at the Baring Cross understanding this proposed rule so that
rulemaking, we will hold one at a time Railroad Drawbridge. they can better evaluate its effects on
and place announced by a later notice them and participate in the rulemaking.
in the Federal Register. Regulatory Analyses If the rule would affect your small
Background and Purpose We developed this proposed rule after business, organization, or governmental
considering numerous statutes and jurisdiction and you have questions
The Arkansas Waterway is part of the executive orders related to rulemaking. concerning its provisions or options for
McClellan-Kerr Arkansas River Below we summarize our analyses compliance, please contact Mr. Eric
Navigation System. This system rises in based on 13 of these statutes or Washburn, Bridge Management
the vicinity of Catoosa, OK and executive orders. Specialist, Eighth Coast Guard District,
embraces improved natural waterways Bridge Branch, at 314–269–2378. The
and a canal to empty into the Lower Regulatory Planning and Review
Coast Guard will not retaliate against
Mississippi River in southeast Arkansas. This proposed rule is not a small entities that question or complain
The Arkansas Waterway drawbridge ‘‘significant regulatory action’’ under about this proposed rule or any policy
operation regulations contained in 33 section 3(f) of Executive Order 12866, or action of the Coast Guard.
CFR 117.123(b) state that the draw of Regulatory Planning and Review, and
the Baring Cross Railroad Drawbridge, does not require an assessment of Collection of Information
mile 119.6, at Little Rock, AR is potential costs and benefits under This proposed rule would call for no
maintained in the closed position and is section 6(a)(3) of that Order. The Office new collection of information under the
remotely operated. Vessels requesting of Management and Budget has not Paperwork Reduction Act of 1995 (44
an opening shall establish contact by reviewed it under that Order. U.S.C. 3501–3520.).
radiotelephone with the remote We expect the economic impact of
drawbridge operator on VHF–FM this proposed rule on commercial traffic Federalism
Channel 13 in Omaha, NE. In order to operating on the Arkansas Waterway to A rule has implications for federalism
better differentiate between vessel and be so minimal that a full Regulatory under Executive Order 13132,
land traffic for the remote drawbridge Evaluation is unnecessary. The Federalism, if it has a substantial direct
operator, Union Pacific has requested operating procedures are already in effect on State or local governments and
would either preempt State law or determined that it is not a ‘‘significant Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
impose a substantial direct cost of energy action’’ under that order because Department of Homeland Security Delegation
compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ No. 0170.1.
this proposed rule under that Order and under Executive Order 12866 and is not 2. In § 117.123, revise
have determined that it does not have likely to have a significant adverse effect paragraphs(b)(1) and (b)(2) to read as
implications for federalism. on the supply, distribution, or use of follows:
energy. The Administrator of the Office
Unfunded Mandates Reform Act § 117.123 Arkansas Waterway.
of Information and Regulatory Affairs
The Unfunded Mandates Reform Act has not designated it as a significant * * * * *
of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not (b) * * *
Federal agencies to assess the effects of require a Statement of Energy Effects (1) Normal Flow Procedures. Any
their discretionary regulatory actions. In under Executive Order 13211. vessel which requires an opening of the
particular, the Act addresses actions draw of this bridge shall establish
that may result in the expenditure by a Technical Standards contact by radiotelephone with the
State, local, or tribal government, in the The National Technology Transfer remote drawbridge operator on VHF–
aggregate, or by the private sector of and Advancement Act (NTTAA) (15 FM Channel 13 in Omaha, NE. To
$100,000,00 (adjusted for inflation) or U.S.C. 272 note) directs agencies to use establish contact, the vessel shall key
more in any one year. Though this voluntary consensus standards in their the radio microphone four times in five
proposed rule will not result in such an regulatory activities unless the agency seconds and listen for an
expenditure, we do discuss the effects of provides Congress, through the Office of acknowledgement tone. The remote
this rule elsewhere in this preamble. Management and Budget, with an drawbridge operator will then establish
explanation of why using these normal verbal radio communications on
Taking of Private Property VHF–FM Channel 13 and advise the
standards would be inconsistent with
This proposed rule would not effect a applicable law or otherwise impractical. vessel whether the requested span can
taking of private property or otherwise be immediately opened and will
Voluntary consensus standards are
have taking implications under maintain constant contact with the
technical standards (e.g., specifications
Executive Order 12630, Governmental vessel until the requested span has
of materials, performance, design, or
Actions and Interference with opened and the vessel passage has been
operation; test methods; sampling
Constitutionally Protected Property completed. The bridge is equipped with
procedures; and related management
Rights. a Photoelectric Boat Detection System to
systems practices) that are developed or
prevent the span from lowering if there
Civil Justice Reform adopted by voluntary consensus
is an obstruction under the span. If the
standards bodies.
This proposed rule meets applicable drawbridge cannot be opened
This proposed rule does not use
standards in sections 3(a) and 3(b)(2) of immediately, the remote drawbridge
technical standards. Therefore, we did
Executive Order 12988, Civil Justice operator will notify the calling vessel
not consider the use of voluntary
Reform, to minimize litigation, and provide an estimated time for a
consensus standards. drawbridge opening.
eliminate ambiguity, and reduce
burden. Environment (2) High Velocity Flow Procedures.
The area from mile 118.2 to mile 125.4
Protection of Children We have analyzed this proposed rule
is a regulated navigation area as
under Department of Homeland
We have analyzed this proposed rule described in § 165.817. During periods
Security Management Directive 023–01,
under Executive Order 13045, of high velocity flow, which is defined
and Commandant Instruction
Protection of Children from as a flow rate of 70,000 cubic feet per
M16475.lD which guides the Coast
Environmental Health Risks and Safety second or greater at the Murray Lock
Guard in complying with the National
Risks. This rule is not an economically and Dam, mile 125.4, downbound
Environmental Policy Act of 1969
significant rule and would not create an vessels which require that the draw of
(NEPA)(42 U.S.C. 4321–4370f), and
environmental risk to health or risk to this bridge be opened for unimpeded
have made a preliminary determination
safety that might disproportionately passage shall contact the remote
that this action is one of a category of
affect children. drawbridge operator as described above
actions which do not individually or
in § 117.123(b)(1) either before
Indian Tribal Governments cumulatively have a significant effect on
departing Murray Lock and Dam or
the human environment because it
This proposed rule does not have before departing the mooring cells at
simply promulgates the operating
tribal implications under Executive mile 121.5 to ensure that the Baring
regulations or procedures for
Order 13175, Consultation and Cross Railroad Drawbridge is opened.
drawbridges. We seek any comments or
Coordination with Indian Tribal The remote drawbridge operator shall
information that may lead to the
Governments, because it would not have immediately respond to the vessel’s
discovery of a significant environmental
a substantial direct effect on one or contact, ensure that the drawbridge is
impact from this proposed rule.
more Indian tribes, on the relationship open for passage, and ensure that it
between the Federal Government and List of Subjects in 33 CFR Part 117 remains in the open position until the
Indian tribes, or on the distribution of Bridges. downbound vessel has passed through.
power and responsibilities between the If it cannot be opened immediately for
For the reasons discussed in the
Federal Government and Indian tribes. unimpeded passage in accordance with

preamble, the Coast Guard proposes to § 165.817, the remote drawbridge
Energy Effects amend 33 CFR part 117 as follows: operator will immediately notify the
We have analyzed this proposed rule PART 117—DRAWBRIDGE downbound vessel and provide an
under Executive Order 13211, Actions OPERATION REGULATIONS estimated time for a drawbridge
Concerning Regulations That opening. Upbound vessels shall request
Significantly Affect Energy Supply, 1. The authority citation for part 117 openings in accordance with the normal
Distribution, or Use. We have continues to read as follows: flow procedures as set forth above in
§ 117.123(b)(1). The remote drawbridge (4) Hand Delivery: Same as mail ‘‘Document Type’’ drop down menu
operator shall keep all approaching address above, between 9 a.m. and select ‘‘Proposed Rule’’ and insert
vessels informed of the position of the 5 p.m., Monday through Friday, except ‘‘USCG–2008–0747’’ in the ‘‘Keyword’’
drawbridge span. Federal holidays. The telephone number box. Click ‘‘Search’’ then click on the
* * * * * is 202–366–9329. balloon shape in the ‘‘Actions’’ column.
To avoid duplication, please use only If you submit your comments by mail or
one of these four methods. See the hand delivery, submit them in an
James E. Tunstall, ‘‘Public Participation and Request for unbound format, no larger than 81⁄2 by
Captain, U.S. Coast Guard, Commander, 8th Comments’’ portion of the 11 inches, suitable for copying and
Coast Guard Dist. Acting. SUPPLEMENTARY INFORMATION section electronic filing. If you submit
[FR Doc. 2010–13121 Filed 6–1–10; 8:45 am] below for instructions on submitting comments by mail and would like to
BILLING CODE 9110–04–P comments. know that they reached the Facility,
FOR FURTHER INFORMATION CONTACT: If please enclose a stamped, self-addressed
you have questions on this proposed postcard or envelope. We will consider
DEPARTMENT OF HOMELAND all comments and material received
SECURITY rule, call ENS Ashley Wanzer,
Waterways Management, Sector Seattle, during the comment period and may
Coast Guard Coast Guard; telephone 206–217–6175, change the rule based on your
e-mail SectorSeattleWWM@uscg.mil. If comments.
33 CFR Part 165 you have questions on viewing or Viewing Comments and Documents
submitting material to the docket, call
[Docket No. USCG–2008–0747] To view comments, as well as
Renee V. Wright, Program Manager,
documents mentioned in this preamble
RIN 1625–AA11 Docket Operations, telephone 202–366–
as being available in the docket, go
9826.
tohttp://www.regulations.gov, click on
Regulated Navigation Area; Thea Foss SUPPLEMENTARY INFORMATION: the ‘‘read comments’’ box, which will
and Wheeler-Osgood Waterways EPA
Public Participation and Request for then become highlighted in blue. In the
Superfund Cleanup Site,
Comments ‘‘Keyword’’ box insert ‘‘USCG–2008–
Commencement Bay, Tacoma, WA
0747’’ and click ‘‘Search.’’ Click the
We encourage you to participate in ‘‘Open Docket Folder’’ in the ‘‘Actions’’
AGENCY: Coast Guard, DHS.
this rulemaking by submitting column. You may also visit the Docket
ACTION: Supplemental notice of comments and related materials. All
proposed rulemaking; request for Management Facility in Room W12–140
comments received will be posted on the ground floor of the Department
comments. without change to http:// of Transportation West Building, 1200
SUMMARY: The Coast Guard is revising
www.regulations.gov and will include New Jersey Avenue, SE., Washington,
its proposed rule that would establish a any personal information you have DC 20590, between 9 a.m. and 5 p.m.,
permanent regulated navigation area provided. Monday through Friday, except Federal
(RNA) on portions of the Thea Foss and Submitting Comments holidays. We have an agreement with
Wheeler-Osgood Waterways in If you submit a comment, please the Department of Transportation to use
Commencement Bay, Tacoma, include the docket number for this the Docket Management Facility.
Washington. The RNA would protect rulemaking (USCG–2008–0747), Privacy Act
the seabed in portions of those indicate the specific section of this
waterways that are subject to the U.S. Anyone can search the electronic
document to which each comment form of comments received into any of
Environmental Protection Agency’s applies, and provide a reason for each
(EPA’s) Commencement Bay Nearshore/ our dockets by the name of the
suggestion or recommendation. You individual submitting the comment (or
Tideflats superfund cleanup may submit your comments and
remediation efforts. To more effectively signing the comment, if submitted on
material online (via http:// behalf of an association, business, labor
protect those efforts, the Coast Guard is www.regulations.gov) or by fax, mail, or
revising the proposed rule by slightly union, etc.). You may review a Privacy
hand delivery, but please use only one Act notice regarding our public dockets
expanding the boundaries of the of these means. If you submit a
proposed RNA. in the January 17, 2008, issue of the
comment online via http:// Federal Register (73 FR 3316).
DATES: Comments and related material www.regulations.gov, it will be
must be received by the Coast Guard on considered received by the Coast Guard Public Meeting
or before August 2, 2010. Requests for when you successfully transmit the We do not now plan to hold a public
public meetings must be received by the comment. If you fax, hand deliver, or meeting. But you may submit a request
Coast Guard on or before July 2, 2010. mail your comment, it will be for one on or before July 2, 2010 using
ADDRESSES: You may submit comments considered as having been received by one of the four methods specified under
identified by docket number USCG– the Coast Guard when it is received at ADDRESSES. Please explain why you
2008–0747 using any one of the the Docket Management Facility. We believe a public meeting would be
following methods: recommend that you include your name beneficial. If we determine that one
(1) Federal eRulemaking Portal: and a mailing address, an e-mail would aid this rulemaking, we will hold
http://www.regulations.gov. address, or a telephone number in the one at a time and place announced by
(2) Fax: 202–493–2251. body of your document so that we can a later notice in the Federal Register.
(3) Mail: Docket Management Facility contact you if we have questions
(M–30), U.S. Department of regarding your submission. Regulatory Information
Transportation, West Building Ground To submit your comment online, go to The Coast Guard published a notice of
Floor, Room W12–140, 1200 New Jersey http://www.regulations.gov, click on the proposed rulemaking (NPRM) entitled
Avenue, SE., Washington, DC 20590– ‘‘submit a comment’’ box, which will ‘‘Regulated Navigation Area; Thea Foss
0001. then become highlighted in blue. In the and Wheeler-Osgood Waterways EPA
Superfund Cleanup Site, Regulatory Planning and Review listed in the (FOR FURTHER INFORMATION
Commencement Bay, Tacoma, WA’’ in This proposed rule is not a significant CONTACT) section. The Coast Guard will
the Federal Register (73 FR 162, Aug. regulatory action under section 3(f) of not retaliate against small entities that
20, 2008), docket number USCG–2008– Executive Order 12866, Regulatory question or complain about this
0747. We received one comment on the Planning and Review, and does not proposed rule or any policy or action of
NPRM. require an assessment of potential costs the Coast Guard.
Background and Purpose and benefits under section 6(a)(3) of that Collection of Information
The purpose of the proposed RNA is Order. The Office of Management and
Budget has not reviewed it under that This proposed rule would call for no
to preserve the integrity of the clean new collection of information under the
sediment caps placed over certain areas Order. This expectation is based on the
fact that the RNA established by the rule Paperwork Reduction Act of 1995 (44
of the Thea Foss and Wheeler-Osgood U.S.C. 3501–3520.).
Waterways as part of the EPA’s would encompass a small area that
Commencement Bay Nearshore/ should not impact commercial or Federalism
Tideflats superfund cleanup recreational traffic, and prohibited
remediation process in those waters. activities are not routine for the A rule has implications for federalism
These caps consist of approximately designated areas. under Executive Order 13132,
three feet of sand and gravel, designed Federalism, if it has a substantial direct
Small Entities
to withstand activities common to a effect on State or local governments and
Under the Regulatory Flexibility Act would either preempt State law or
working waterfront, covering
(5 U.S.C. 601–612), we have considered impose a substantial direct cost of
approximately 30 acres of sediment in
whether this proposed rule would have compliance on them. We have analyzed
the waterway.
a significant economic impact on a this proposed rule under that Order and
Discussion of Comments and Change substantial number of small entities. have determined that it does not have
During the comment period for the The term ‘‘small entities’’ comprises implications for federalism.
NPRM, the Coast Guard received one small businesses, not-for-profit
organizations that are independently Unfunded Mandates Reform Act
comment from the City of Tacoma,
which requested to be included in any owned and operated and are not The Unfunded Mandates Reform Act
consultation over the grant of a waiver dominant in their fields, and of 1995 (2 U.S.C. 1531–1538) requires
under the proposed RNA. We have governmental jurisdictions with Federal agencies to assess the effects of
revised the proposed waiver provisions populations of less than 50,000. their discretionary regulatory actions. In
in this supplemental NPRM (SNPRM) to The Coast Guard certifies under particular, the Act addresses actions
eliminate details of the waiver decision 5 U.S.C. 605(b) that this proposed rule that may result in the expenditure by a
process that are inappropriate for would not have a significant economic State, local, or tribal government, in the
regulatory text and subject to impact on a substantial number of small aggregate, or by the private sector of
intergovernmental or other agreements. entities. This rule would affect the $100,000,000 or more in any one year.
At the same time, we restate our following entities, some of which may Though this proposed rule would not
commitment to avoid granting any be small entities: The owners or result in such an expenditure, we do
waiver that could unduly jeopardize the operators of vessels intending to anchor, discuss the effects of this rule elsewhere
superfund site remediation efforts that dredge, spud, lay cable or disturb the in this preamble.
underlie the whole concept of the seabed in any fashion when this rule is
in effect. The RNA would not have a Taking of Private Property
proposed RNA, and we would consult
with the City of Tacoma and significant economic impact on small
This proposed rule would not effect a
stakeholders as needed and appropriate entities due to its minimal restrictive
taking of private property or otherwise
to safeguard those efforts. area and ample opportunities for
have taking implications under
avoiding this region.
Discussion of Proposed Rule Executive Order 12630, Governmental
If you think that your business,
Actions and Interference with
The proposed RNA would prohibit organization, or governmental
Constitutionally Protected Property
activities that could disturb the seabed jurisdiction qualifies as a small entity
Rights.
or the sediment caps, such as anchoring, and that this rule would have a
dragging, trawling, or spudding. It significant economic impact on it, Civil Justice Reform
would not affect transit or navigation of please submit a comment (see
the area. In this SNPRM, we have ADDRESSES) explaining why you think it This proposed rule meets applicable
slightly expanded the boundaries qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of
initially proposed for the RNA, to this rule would economically affect it. Executive Order 12988, Civil Justice
include buffer zones around EPA’s Reform, to minimize litigation,
Assistance for Small Entities eliminate ambiguity, and reduce
sediment caps. We have also simplified
the proposed waiver provisions, while Under section 213(a) of the Small burden.
restating our intention that any waivers Business Regulatory Enforcement Protection of Children
be consistent with the EPA’s Fairness Act of 1996 (Pub. L. 104–121),
remediation efforts in the area. we want to assist small entities in We have analyzed this proposed rule
understanding this proposed rule so that under Executive Order 13045,

Regulatory Analyses they can better evaluate its effects on Protection of Children from
We developed this proposed rule after them and participate in the rulemaking. Environmental Health Risks and Safety
considering numerous statutes and If the rule would affect your small Risks. This rule is not an economically
executive orders related to rulemaking. business, organization, or governmental significant rule and would not create an
Below we summarize our analyses jurisdiction and you have questions environmental risk to health or risk to
based on 13 of these statutes or concerning its provisions or options for safety that might disproportionately
executive orders. compliance, please contact the person affect children.
Indian Tribal Governments the human environment. A preliminary Point 4: 47°15′18.26″ N, 122°25′56.45″
This proposed rule does not have environmental analysis checklist W;
tribal implications under Executive supporting this determination is [Datum: NAD 1983].
Order 13175, Consultation and available in the docket where indicated
Coordination with Indian Tribal under ADDRESSES. (3) All waters of the Thea Foss and
Governments, because it would not have This proposed rule involves no factors Wheeler-Osgood Waterways south of a
a substantial direct effect on one or in this case that would limit the use of line bounded by connecting the
more Indian tribes, on the relationship a categorical exclusion under section following points:
between the Federal Government and 2.B.2 of the Instruction. Therefore, we
believe that this rule should be Point 1: 47°15′13.94″ N, 122°26′05.56″
Indian tribes, or on the distribution of W;
power and responsibilities between the categorically excluded, under figure
Federal Government and Indian tribes. 2–1, paragraph (34)(g), of the Point 2: 47°15′15.01″ N, 122°25′55.14″
Instruction, from further environmental W.
Energy Effects documentation. As a proposal to [Datum: NAD 1983].
We have analyzed this proposed rule establish a regulated navigation area,
under Executive Order 13211, Actions this rule meets the criteria outlined in (b) Regulations.
Concerning Regulations That paragraph (34)(g). (1) All vessels and persons are
Significantly Affect Energy Supply, Comments on this section will be prohibited from activities that would
Distribution, or Use. We have considered before we make the final
disturb the seabed, such as anchoring,
determined that it is not a ‘‘significant decision on whether this rule should be
dragging, trawling, spudding, or other
energy action’’ under that order because categorically excluded from further
environmental review. activities that involve disrupting the
it is not a ‘‘significant regulatory action’’ integrity of the sediment caps installed
under Executive Order 12866 and is not List of Subjects in 33 CFR Part 165 in the designated regulated navigation
likely to have a significant adverse effect area, pursuant to the remediation efforts
Harbors, Marine safety, Navigation
on the supply, distribution, or use of
(water), Reporting and recordkeeping of the U.S. Environmental Protection
energy. The Administrator of the Office
requirements, Security measures, Agency (EPA) and others in the Thea
of Information and Regulatory Affairs
has not designated it as a significant Waterways. Foss and Wheeler-Osgood Waterways
energy action. Therefore, it does not For the reasons discussed in the EPA superfund cleanup site. Vessels
require a Statement of Energy Effects preamble, the Coast Guard proposes to may otherwise transit or navigate within
under Executive Order 13211. amend 33 CFR part 165 as follows: this area without reservation.
Technical Standards PART 165—REGULATED NAVIGATION (2) The prohibition described in
AREAS AND LIMITED ACCESS AREAS paragraph (b)(1) of this section does not
The National Technology Transfer apply to vessels or persons engaged in
and Advancement Act (NTTAA) (15 1. The authority citation for part 165 activities associated with remediation
U.S.C. 272 note) directs agencies to use continues to read as follows: efforts in the Thea Foss or Wheeler-
voluntary consensus standards in their
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Osgood Waterways superfund sites,
regulatory activities unless the agency Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
provides Congress, through the Office of provided that the Captain of the Port,
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. Puget Sound (COTP), is given advance
Management and Budget, with an 107–295, 116 Stat. 2064; Department of
explanation of why using these Homeland Security Delegation No. 0170.1.
notice of those activities by the EPA.
standards would be inconsistent with 2. Add § 165.1329 to read as follows: (c) Waiver. Upon written request
applicable law or otherwise impractical. stating the need and proposed
Voluntary consensus standards are § 165.1329 Regulated Navigation Area; conditions of the waiver, and any
technical standards (e.g., specifications Thea Foss and Wheeler-Osgood Waterways proposed precautionary measures, the
of materials, performance, design, or EPA Superfund Cleanup Site, COTP may authorize a waiver from this
operation; test methods; sampling Commencement Bay, Tacoma, WA.
section if the COTP determines that the
procedures; and related management (a) Regulated Areas. The following activity for which the waiver is sought
systems practices) that are developed or areas are regulated navigation areas: can take place without undue risk to the
adopted by voluntary consensus (1) All waters of the Thea Foss
Waterway bounded by a line connecting remediation efforts described in
standards bodies. paragraph (b)(1) of this section. The
This proposed rule does not use the following points:
technical standards. Therefore, we did COTP will consult with EPA in making
Point 1: 47°15′43.49″ N, 122°26′23.29″
not consider the use of voluntary W; this determination when necessary and
consensus standards. Point 2: 47°15′44.59″ N, 122°26′19.89″ practicable.
W; Dated: April 30, 2010.
Environment Point 3: 47°15′39.01″ N, 122°26′15.99″ G.T. Blore,
We have analyzed this proposed rule W;
Rear Admiral, U.S. Coast Guard, Commander,
under Department of Homeland Point 4: 47°15′37.91″ N, 122°26′19.39″
Thirteenth Coast Guard District.
Security Management Directive 023–01 W;
[Datum: NAD 1983]. [FR Doc. 2010–12978 Filed 6–1–10; 8:45 am]
and Commandant Instruction
M16475.lD, which guide the Coast (2) All waters of the Thea Foss BILLING CODE 9110–04–P
Guard in complying with the National Waterway bounded by a line connecting
Environmental Policy Act of 1969 the following points:
(NEPA) (42 U.S.C. 4321–4370f), and Point 1: 47°15′22.74″ N, 122°25′57.15″
have made a preliminary determination W;
that this action is one of a category of Point 2: 47°15′22.52″ N, 122°26′0.18″ W;
actions which do not individually or Point 3: 47°15′18.05″ N, 122°25′59.48″
cumulatively have a significant effect on W;
DEPARTMENT OF HEALTH AND FY 2011 IPPS/LTCH PPS proposed rule, FEDERAL COMMUNICATIONS
HUMAN SERVICES which is June 18, 2010. COMMISSION
Centers for Medicare & Medicaid III. Correction of Errors 47 CFR Part 73
Services In FR Doc. 2010–12567 filed May 21,
2010, make the following correction: [DA 10–852; MB Docket No. 10–108]
42 CFR Parts 412 and 413 1. In the DATES section, the date ‘‘July
2, 2010’’ is corrected to read ‘‘June 18, FM Table of Allotments, Pacific
[CMS–1498–CN]
2010.’’ Junction, Iowa
RIN 0938–AP80
IV. Waiver of 60-Day Comment Period AGENCY: Federal Communications
Medicare Program; Supplemental We ordinarily permit a 60-day Commission
Proposed Changes to the Hospital comment period on notices of proposed ACTION: Proposed rule.
Inpatient Prospective Payment rulemaking in the Federal Register, as
Systems for Acute Care Hospitals and provided in section 1871(b)(1) of the SUMMARY: The Audio Division seeks
the Long-Term Care Hospital Act. However, this period may be comments on the proposed deletion of
Prospective Payment System and shortened, as provided under section Channel 299C2 at Pacific Junction,
Supplemental Proposed Fiscal Year 1871(b)(2)(C) of the Act, when the Iowa. The reference coordinates for
2011 Rates; Correction Secretary finds good cause that a 60-day Channel 299C2 at Pacific Junction are
comment period would be 18–20–36 NL and 64–55–48 WL.
AGENCY: Centers for Medicare & Interested parties must file comments
Medicaid Services (CMS), HHS. impracticable, unnecessary, or contrary
to the public interest and incorporates a expressing an interest for Channel
ACTION: Correction of proposed rule. 299C2 at Pacific Junction to prevent its
statement of the finding and its reasons
in the rule issued. deletion. Any party filing a comment
SUMMARY: This document corrects
The changes made by this correction expressing an interest in retaining
technical errors that appeared in the service in Pacific Junction will be
supplementary proposed rule entitled notice do not constitute agency
rulemaking, and therefore the 60-day required to provide evidence,
‘‘Medicare Program; Supplemental demonstrating that a properly spaced
Proposed Changes to the Hospital comment period does not apply. This
correction notice merely corrects site is technically feasible and meets
Inpatient Prospective Payment Systems FAA criteria. Additionally, any
for Acute Care Hospitals and the Long- typographical and technical errors in FY
2011 IPPS/LTCH PPS supplemental expressions of interest specifying sites
Term Care Hospital Prospective conforming with the minimum distance
Payment System and Supplemental proposed rule and does not make
substantive changes to either that separation requirements of Section
Proposed Fiscal Year 2011 Rates’’ which 73.207(b) in response to this Notice will
was filed for public inspection on May proposed rule or the first FY 2011 IPPS/
LTCH PPS proposed rule appearing in be required to submit specific showings
21, 2010. demonstrating the ability to provide a
DATES: The comment period for the
the May 4, 2010 Federal Register that
would require additional time on which 3.16 mV/m contour over the entire
proposed rule FR Doc. No. 2010–12567, principal community of Pacific
published elsewhere in this issue, is to comment. Instead, this correction
notice is intended to ensure the Junction, as required by Section 73.315
corrected to close June 18, 2010. of the Commission’s Rules. Although
accuracy of the FY 2011 IPPS/LTCH
FOR FURTHER INFORMATION CONTACT: Tzvi site certification is generally not
PPS supplemental proposed rule.
Hefter, (410) 786–4487. We further note that this document required in the context of a rulemaking
SUPPLEMENTARY INFORMATION: makes corrections to a supplemental proceeding, we believe the facts in this
proposed rule for which the Secretary case warrant a departure from that
I. Background policy. Any interested party will be
has found good cause to shorten the
In FR Doc. 2010–12567 filed May 21, required 60-day comment period; we required to provide information
2010, there are technical and refer readers to section III.B. of the FY demonstrating that it has reasonable
typographical errors that are identified 2011 IPPS/LTCH PPS supplemental assurance of transmitter site availability.
and corrected in the Correction of Errors proposed rule for additional discussion DATES: Comments must be filed by July
section below. on that point. Therefore, to the extent 6, 2010 and Reply Comment must be
II. Summary of Errors that the 60-day comment period does filled by July 21, 2010
apply, we find that good cause to ADDRESSES: Federal Communications
In the DATES section, we inadvertently
shorten that period for the reasons set Commission, 445 12th Street, SW,
requested that the Office of the Federal
forth above, as well as for the reasons Washington, DC 20554.
Register base the comment period
articulated in section III.B. of the FY FOR FURTHER INFORMATION CONTACT:
closing date on the date of publication
2011 IPPS/LTCH PPS supplemental Rolanda F. Smith, Media Bureau, (202)
of the proposed rule. In the waiver
proposed rule. 418–2180.
section of the proposed rule, we
indicated that ‘‘we are waiving the 60- (Catalog of Federal Domestic Assistance SUPPLEMENTARY INFORMATION: This is a
day comment period for good cause and Program No. 93.773, Medicare—Hospital summary of the Commission’s Notice of
allowing a comment period that Insurance; and Program No. 93.774, Proposed Rule Making, MB Docket No.
Medicare—Supplementary Medical
coincides with the comment period Insurance Program)

10–108, adopted May 12, 2010, and
provided for on the FY 2011 IPPS/LTCH released May 14, 2010. The full text of
PPS proposed rule (75 FR 23852).’’ Dated: May 28, 2010. this Commission document is available
Therefore, in section III. of this Ashley Files Flory, for inspection and copying during
correction notice, we correct this error Deputy Executive Secretary to the normal business hours in the FCC
by inserting the date that the comment Department. Reference Information Center (Room
period closes to coincide with the date [FR Doc. 2010–13405 Filed 5–28–10; 4:15 pm] CY–A257), 445 12th Street, SW.,
that the comment period closes for the BILLING CODE 4120–01–P Washington, DC.
The Pacific Junction allotment was following words in the body of the DEPARTMENT OF THE INTERIOR
added to the FM Table of Allotment in message, ‘‘get form.’’ A sample form and
2000. See 65 FR 41377, published July directions will be sent in response. Fish and Wildlife Service
5, 2000. However, the allotment was For Paper Filers: Parties who choose
later removed as a result of MB Docket 50 CFR Part 17
to file by paper must file an original and
05–210. See 71 FR 76208, published [Docket No. FWS-R2-ES-2008-0114]
four copies of each filing. If more than
December 20, 2006. In this regard, [92220-1113-0000; ABC Code: C5]
Channel 299A was included in Auction one docket or rulemaking number
37 and acquired by Connoisseur Media, appears in the caption of this
Endangered and Threatened Wildlife
LLC as the winning bidder. proceeding, filers must submit two
and Plants; 12-Month Finding on a
The complete text of this decision additional copies for each additional Petition to Delist Cirsium vinaceum
may also be purchased from the docket or rule making number. (Sacramento Mountains thistle)
Commission’s copy contractor, Best Filings can be sent by hand or
Copy and Printing, Inc., 445 12th Street, AGENCY: Fish and Wildlife Service,
messenger delivery, by commercial
SW, Room CY–B402, Washington, DC overnight courier, or by first–class or Interior.
20554, 800–378–3160 or via the overnight U.S. Postal Service mail ACTION: Notice of 12–month petition
company’s website, http:// (although we continue to experience finding.
www.bcpiweb.com. delays in receiving U.S. Postal Service
This document does not contain SUMMARY: We, the U.S. Fish and
proposed information collection mail). All filings must be addressed to Wildlife Service, announce a 12–month
requirements subject to the Paperwork the Commission’s Secretary, Office of finding on a petition to remove Cirsium
Reduction Act of 1995, Public Law 104– the Secretary, Federal Communications vinaceum (Sacramento Mountains
13. In addition, therefore, it does not Commission. thistle) from the Federal List of
contain any proposed information • The Commission’s contractor will Threatened and Endangered Plants
collection burden ‘‘for small business receive hand–delivered or messenger– under the Endangered Species Act.
concerns with fewer than 25 delivered paper filings for the After reviewing the best scientific and
employees,’’ pursuant to the Small Commission’s Secretary at 236 commercial information available, we
Business Paperwork Relief Act of 2002, Massachusetts Avenue, NE, Suite 110, find that delisting C. vinaceum is not
Public Law 107–198, see 44 U.S.C. Washington, DC 20002. The filing hours warranted. However, we ask the public
3506(c)(4). at this location are 8:00 a.m. to 7:00 p.m. to submit to us any new information
Provisions of the Regulatory that becomes available concerning the
All hand deliveries must be held
Flexibility Act of 1980 does not apply status of, or threats to, the species or its
together with rubber bands or fasteners.
to this proceeding. habitats at any time. This information
Pursuant to sections 1.415 and 1.419 Any envelope must be disposed of
will help us monitor and encourage the
of the Commission’s rules, 47 CFR §§ before entering the building.
conservation of this species.
1.415, 1.419, interested parties may file • Commercial overnight mail (other DATES: The finding announced in this
comments and reply comments on or than U.S. Postal Service Express Mail document was made on June 2, 2010.
before the dates indicated on the first and Priority Mail) must be sent to 9300 ADDRESSES: This finding is available on
page of this document. Comment may East Hampton Drive, Capitol Heights,
be filed using: (1) the Commission’s the Internet at http://
MD 20743. www.regulations.gov at Docket # FWS-
Electronic Comment Filing System
• U.S. Postal Service first–class, R2-ES-2008-0114 and http://
(ECFS), (2) the Federal Government’s
eRulemaking Portal, or (3) by filing Express, and Priority mail must be www.fws.gov/New Mexico. Supporting
paper copies. See Electronic Filing of addressed to 445 12th Street, SW, documentation we used to prepare this
Documents in Rulemaking Proceedings, Washington, DC 20554. finding is available for public
63 FR 24121 (1988). People with Disabilities: To request inspection, by appointment, during
Electronic Filers: Comments may be materials in accessible formats for normal business hours at the U.S. Fish
filed electronically using the Internet by and Wildlife Service, New Mexico
people with disabilities (Braille, large
accessing the ECFS: http:// Ecological Services Office, 2105 Osuna
print, electronic files, audio format),
www.fcc.gov/cgb/ecfs/ or the Federal NE, Albuquerque, NM 87113; telephone
send an e–mail to fcc504@fcc.gov or call (505) 346-2525; facsimile (505) 346-
eRulemaking Portal: http:// the Consumer & Government Affairs
www.regulations.gov. For submitting 2542. Please submit any new
Bureau at 202–418–0530 (voice) , 202– information, materials, comments, or
comments, filers should follow the 418–0432 (tty).
instructions provided on the website. questions concerning this finding to the
For ECFS filer, if multiple docket or Federal Communications Commission. above address.
rulemaking numbers appear in the John A. Karousos, FOR FURTHER INFORMATION CONTACT:
caption of this proceeding, filer must Assistant Chief, Audio Division, Media
Wally ‘‘J’’ Murphy, Field Supervisor,
transmit one electronic copy of the Bureau. New Mexico Ecological Services Field
comments for each docket or Office (see ADDRESSES). If you use a
rulemaking number referenced in the [FR Doc. 2010–13135 Filed 6–1–10; 8:45 am] telecommunications device for the deaf
caption. In completing the transmittal BILLING CODE 6712–01–S (TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
screen, filers should include their full

name, U.S. Postal Service mailing SUPPLEMENTARY INFORMATION:
address, and the applicable docket or
rulemaking number. Parties may also Background
submit an electronic comment by Section 4(b)(3)(A) of the Endangered
Internet e–mail. To get filing Species Act of 1973, as amended (Act;
instructions, filers should send an e– 16 U.S.C. 1531 et seq.) requires that we
mail to ecfs@fcc.gov, and include the make a finding on whether a petition to
list, delist, or reclassify a species Commissioners of Otero County, New conspecific pollen is pollen from other
presents substantial information to Mexico, to delist Cirsium vinaceum. On individuals of the same species, and
indicate the petitioned action may be August 31, 2007, the Service when deposited on the stigma structures
warranted. Section 4(b)(3)(B) of the Act acknowledged receipt of Otero County’s of flowers, can successfully fertilize that
requires that within 12 months after complete petition. On November 6, flower. Burks found that there was more
receiving a petition to revise the Lists of 2008, we published a 90–day finding conspecific pollen on the stigmas of
Threatened and Endangered Wildlife with the conclusion that the petition flowers in larger sites than in smaller
and Plants (Lists) that contains and information in our files presented sites simply as a function of there being
substantial information indicating that substantial information indicating that more C. vinaceum individuals in the
the petitioned action may be warranted, delisting C. vinaceum may be warranted area. This suggests that larger sites have
the Secretary shall make one of the (73 FR 66003). That document also a better chance of receiving enough of
following findings: (a) The petitioned initiated a review of the species’ status the appropriate type of pollen to ensure
action is not warranted; (b) the within its range. successful fertilization and persistence
petitioned action is warranted; or (c) the of that site.
Species and Habitat Information Cirsium vinaceum is an obligate
petitioned action is warranted but
precluded by pending proposals to E.O. Wooton and P.C. Standley first wetland species that requires saturated
determine whether any species is an described Cirsium vinaceum in 1913, soils with surface or subsurface water
endangered or threatened species as and originally named it Carduus flow. Cirsium vinaceum habitats occur
long as expeditious progress is being vinaceus, in accordance with generic in mixed conifer forests and open
made to add qualified species to, and concepts at that time. In 1915, Wooten valleys. Waters at these sites are rich in
remove species from, the Lists. Such and Standley combined the thistle with calcium carbonate, from limestone
12–month findings are to be published Cirsium, a common genus in the New sources, that often precipitates out to
promptly in the Federal Register. Mexico flora. create large areas of travertine (calcium
Cirsium vinaceum is a stout plant, 3.3 carbonate) deposits, which occasionally
Previous Federal Actions to 5.9 feet (ft) (1 to 1.8 meters (m)) tall become large bluffs or hills. Travertine
The U.S. Fish and Wildlife Service when mature. Cirsium vinaceum stems deposits are the most common habitat of
(Service) proposed to list Cirsium are brown-purple and highly branched. the species.
vinaceum as a threatened species with The basal leaves are green, 12 to 20
critical habitat under the Act on May 16, inches (in) (30 to 50 centimeters (cm)) Distribution and Range
1984 (49 FR 20735), and listed the long, and up to 8 in (20 cm) wide, with Cirsium vinaceum occurs in Otero
species on June 16, 1987 (52 FR 22933). ragged edges. Cirsium vinaceum is a County, New Mexico, mostly on the
A recovery plan for C. vinaceum was short-lived perennial. It lives as a rosette eastern slope of the Sacramento
signed on September 27, 1993. The (a circular arrangement of leaves close Mountains, with a few sites on the
proposed critical habitat rule was not to the ground) for one or more years, western slope. The range extends from
adopted in the final determination to and eventually a stem bolts upward about 6 miles (mi) (10 kilometers (km))
list C. vinaceum as a threatened species. producing flower and seed. Flowering, northeast to about 17 mi (27 km) south
The proposed critical habitat rule was the vehicle for reproduction, occurs of Cloudcroft in an area of about 150
withdrawn, because the initial area only once, from late June through square mi (390 square km) (Service
proposed was considered too large to be August, when pink-purple flower heads 1993, p. 3). Plants occur in meadows
essential for C. vinaceum’s form at the tips of stems. and partly shaded forested areas in the
conservation; the secondary option of Seeds are usually produced through mixed conifer zone at 7,500–9,200 ft
designating small, separated parcels cross-pollination, a form of sexual (2,300–2.743 m) (USFS 2003, p. 42).
around each population was deemed reproduction requiring genes from 2 or More than 95 percent of the known
not prudent because of the potential for more separate Cirsium vinaceum Cirsium vinaceum sites occur on the
vandalism and the absence of net individuals; however, this species is Lincoln National Forest. There are two
benefit to the species (52 FR 22935). capable of reproducing asexually, using additional C. vinaceum sites near the
On April 30, 2004, we received a genetic material from a single individual southern boundary of the Mescalero
petition from Mr. Doug Moore, County to produce a clone. Pollen is carried by Apache Reservation, and one known
Commissioner of Otero County, New a variety of animal vectors, including site on a private property seep in
Mexico, to delist Cirsium vinaceum. In several species of native bees, flies, Fresnal Canyon that is visible from State
response to the petitioner’s request to butterflies, and hummingbirds Highway 82 (Sivinski 2006, pp. 8-9).
delist C. vinaceum, we sent a letter to (Tepedino 2002, pp. III.5-7). Burks The extent of C. vinaceum habitat on
the petitioner dated August 31, 2005, (1994, pp. 72-78) studied pollen private property inholdings (privately
explaining that the Service would movement between C. vinaceum flowers owned land within the boundaries of a
review the petition and information in and found that native bees were less protected area that is federally or
our files and determine whether or not active as pollinators in small sites publicly owned) within the Lincoln
the petition presents substantial (fewer than 100 flowering individuals) National Forest is unknown.
information indicating that delisting C. than in large sites (greater than 1,000 Craddock and Huenneke (1997, p.
vinaceum may be warranted. We flowering individuals), although she 218) studied water dispersal of seed and
concluded in our 90–day finding that concluded that this disparity did not determined that resultant Cirsium
the information presented in the limit the overall reproductive success of vinaceum establishment in streamside
petition and information in our files was smaller sites. Burks did find, however, habitats was sufficient to genetically
not substantial to indicate that delisting that the reproductive success of smaller link some discrete patches of plants.
the species may be warranted; however, sites may be limited by the relative They also found C. vinaceum seed on
the Service initiated a 5–year status abundance of heterospecific versus the surface of snow and hypothesized
review of the species (71 FR 70479; conspecific pollen on stigmas. that snowpack may provide large areas
December 5, 2006). Heterospecific pollen is pollen from of smooth, unobstructed surface for
On August 13, 2007, we received a other species and does not lead to wind transport of seed to adjacent C.
petition from the Board of County successful fertilization, whereas vinaceum patches. Burks (1994, pp. 75-
77) states that discrete patches of C. of the species, sites vary in size from 5 p. 4). The 1987 description of C.
vinaceum sites, interconnected by square m (54 square ft) to several vinaceum as occurring in 20
pollen and seed dispersal, could thousand square meters. populations of discrete patches of
collectively be identified as a plants, or clusters of proximate
Population Abundance
metapopulation. A metapopulation is occupied habitats that experience
defined as group of populations At the time of listing as a threatened limited exchange of genes between
separated geographically, but species in 1987, surveys of USFS land plants in each of the patches because of
interconnected through patterns of estimated Cirsium vinaceum to be a geographic distance, has been revised
exchange of genes (Pulliam and species with 10,000 to 15,000 sexually using more complete survey
Dunning 1994, pp. 189-190). Cirsium reproducing individuals (June 16, 1987; information. Subsequent discoveries of
vinaceum habitats occur in relatively 52 FR 22933). Most of these individuals several additional patches of C.
close proximity and may be sufficiently occur in sites on USFS lands; however, vinaceum between these ‘‘populations’’
connected genetically to form one or several are on private lands and the and observations of seed dispersal in
more metapopulations. Mescalero Indian Reservation (June 16, streams have significantly reduced the
The U.S. Forest Service (USFS) 1987; 52 FR 22933). Both the Service number of C. vinaceum patches that
catalogs Cirsium vinaceum occurrences and the USFS noted at the time that could conform to the traditional
as habitat locations or sites. New accurate counts of the plant had not biological definition of a population
occupied sites have been documented been made, and that the actual number (Craddock and Huenneke 1997, p. 218);
on the Lincoln National Forest since C. of plants was likely much larger than however, a revised number of
vinaceum was listed as a threatened the best available data indicated. A 1990 populations of C. vinaceum has not
species in 1987. By 1993, a total of 62 inventory of Lincoln National Forest been determined.
sites was identified, of which 58 were habitats located 196,000 total plants, The Service and USFS estimates of
on USFS land (Service 1993, p. 2). In including mature and juvenile rosettes total population size of Cirsium
1995, there were 77 sites known to (Service 1993, p. 2). This inventory was vinaceum are based on the 1995
occur on the Lincoln National Forest conducted primarily within the original monitoring protocol of multiplying the
(Service 2005, p. 697). In 2005 and 20 populations described at the time of number of flowering individuals by 10
2007, the USFS cataloged 104 extant, listing. The survey method used to account for the numerous juvenile
historic, or potential C. vinaceum sites reflected all age classes of plants in their rosettes (USFS 2003, pp. 44-45). The
included in a monitoring program habitats, rather than methods used in multiplier of 10 is based on a 1989
(Barlow-Irick 2007, p. 1); however, most subsequent inventories in which only count of all rosettes in four C. vinaceum
of these sites are subdivisions of the flowering stems were counted. The 1990 sites, which found that flowering
original 20 populations described at inventory also determined that C. individuals ranged from 10 percent to
listing. Some sites are sporadically vinaceum is capable of sporadic root 13 percent of the rosettes in the four
occupied by a few plants during wet sprouting to produce multiple rosettes, sites (Sivinski 2006, p. 6). Therefore,
years, and unoccupied or dormant or clones, per individual. this protocol relies on a very limited
during droughts (Sivinski 2006, p. 8). Six additional inventories of Cirsium sample in a single year, which may or
We conclude, therefore, that the 104 C. vinaceum on the Lincoln National may not be accurate for an entire
vinaceum sites currently identified by Forest have been conducted, beginning population estimate in any given year
the USFS cannot be meaningfully in 1995, by Dr. Laura Huenneke, and in (Sivinski 2006, p. 6). We currently do
compared numerically to the original 20 subsequent years by Dr. Patricia Barlow- not have information available to
populations identified in the listing Irick. These inventories consistently determine whether 1989 was a
rule; most of the newly indentified sites followed the survey protocol of representative year, and how other years
do not represent true populations, but counting only flowering plants, rather compare to 1989 in terms of total
subdivisions of the original 20 than all plants of various age classes, at numbers of rosettes at a variety of C.
populations which were identified most of the Lincoln National Forest vinaceum sites. For these reasons, we
through the increased survey effort. locations known at the time. Surveyed are using actual flowering stem counts
The known geographic range of sites consisted of historically occupied, in this finding, and not estimates of total
Cirsium vinaceum has not significantly currently occupied, and potentially population size, as determined by the
expanded since 1987. All but one of the suitable sites within the known range of 1995 monitoring protocol.
newly documented sites occur within C. vinaceum. Total numbers of In 1998, the survey protocol was
the 155-square-mi (401.45-square-km) flowering individuals were 34,228 in changed from estimating population
critical habitat area identified in the 1995; 39,849 in 1998; 34,710 in 2000; size to actually counting every flowering
1984 listing proposal (49 FR 20739; May 30,460 in 2003; 28,063 in 2005; and stem. Additional sites were found in
16, 1984). The newly occupied site in 24,124 in 2007 (Barlow-Irick 2008, p. 1). this year, leading to a population size
Fresnal Canyon extends the range by Total numbers of habitat sites assessed that would translate to nearly 400,000
less than 1 mi (1.6 km) (Sivinski 2009a, were: 76 sites in 1995, 81 sites in 1998, individuals using the old protocol of
p. 1). It was believed to be extirpated 82 sites in 2000, 85 sites in 2003, 85 multiplying the number of flowering
when this species was listed, and is sites in 2005, and 81 sites in 2007 individuals by 10. Barlow-Irick, the
thought to be the type locality (Barlow-Irick 2007, p. 1; Sivinski 2006, contractor who completed the
(representative location where the first p. 6). inventories of Cirsium vinaceum from
specimen was found) for the species Many of the occupied Cirsium 1998 to 2007, states that the reported
(Sivinski 2009a, p. 1). This site has vinaceum sites included in these increase in numbers is not the result of
recently been reoccupied due to a USFS surveys are only 330 ft (100 m) apart the species being more abundant within
road management action that increased and are as small as 54 square ft (5 square populations, but rather is strictly a
water supply to the site (USFS 2004, p. m). Therefore, we do not consider all of function of finding more sites as well as
626). Cirsium vinaceum plants occur in these sites to be ‘‘populations’’ in a the change in protocol from estimating
small, dense groupings covering less reproductive or genetic sense of the population size to actually counting
than 100 acres (ac) (40 hectares (ha)) term, because many are in close every flowering stem (Barlow-Irick
(Service 2005, p. 695). Within the range proximity to one another (Service 1993, 2008, p. 1).
The intensive field monitoring No portion of criterion (1) has been vinaceum continues to be impacted by
described above conducted by met. The State of New Mexico owns the highway maintenance activities,
Huenneke and Barlow-Irick shows a State’s water, as determined by the drought, and an emerging threat of
downward trend in the number of United States v. New Mexico case of insect predation. These additional
occupied sites, overall population 1978 (438 U.S. 696, 98 S. Ct. 3012). threats have not been addressed by
numbers, and number of flowering Federal land managers in New Mexico management plans, and permanent
stalks from 1998 to 2007. The rate of do not own the water located on Federal protection of at least 75 percent of the
decline in total flowering C. vinaceum lands, and therefore cannot deny a known occupied habitats has not been
numbers was 12.9 percent between 1998 claim of a legitimate beneficial use of a ensured.
and 2000, 12.2 percent between 2000 water right. However, a land manager While criterion (3) has not been
and 2003, 7.9 percent between 2003 and can designate the point of diversion explicitly met, it has been addressed in
2005, and 14 percent between 2005 and according to a claim of the water right. concept by continuing studies of
2007. This decline coincides with a In July 2007, the State of New Mexico Cirsium vinaceum population
severe long-term period of drought with adopted legislation establishing a dynamics, ecology, and response to the
higher than average winter temperatures strategic water reserve to manage water mitigation of some threats, such as
across most of New Mexico beginning in for interstate stream augmentation to livestock grazing and trampling. For
1999 (Sivinski 2006, pp. 6-7). Five C. benefit threatened or endangered example, monitoring has shown that
vinaceum sites were extirpated between aquatic or obligate riparian species (NM properly maintained and used
1995 and 2007. In 2007, another 18 sites ST § 72-14-3.3, 2007). This law may be exclosures increase the numbers of C.
contained less than 25 percent of the applicable to protect Cirsium vinaceum vinaceum, allowing recovery at sites.
average number of plants documented habitats. Federal agencies are eligible to The recovery plan also recommends
in the previous five surveys, and 11 acquire such State-based water rights to developing new information for
other sites had between 25 and 50 benefit threatened or endangered biological factor and threat analysis. Of
percent of their average stem count aquatic or obligate riparian species; relevance here is the need for research
(Barlow-Irick 2008, p. 2). However, a however, to date, no action agency has on measures to control insect predation
declining trend is not completely acquired or attempted to acquire water on C. vinaceum.
consistent among C. vinaceum sites. rights to benefit C. vinaceum. Where C. Summary of Information Pertaining to
While most C. vinaceum sites have vinaceum is not exclusively associated the Five Factors
experienced decreasing numbers of with riparian habitats and is not located
flowering stems during the monitoring within river reaches that involve stream Section 4 of the Act (16 U.S.C. 1533)
period, a few sites have increased in augmentation or interstate stream and implementing regulations (50 CFR
stem numbers, likely as a result of compacts, this recent law may not part 424) set forth procedures for adding
exclusion of livestock (USFS 2004, p. apply. This would eliminate most species to, removing species from, or
629). occupied C. vinaceum sites, particularly reclassifying species on the Federal
at its upland spring and travertine shelf Lists of Endangered and Threatened
Sacramento Mountains Thistle (Cirsium Wildlife and Plants. Under section
habitats. Also, the New Mexico State
vinaceum) Recovery Plan 4(a)(1) of the Act, a species may be
Engineer has the ability to protect a
The main objective of the Sacramento water resource to further a ‘‘State determined to be endangered or
Mountains Thistle Cirsium vinaceum Conservation Goal,’’ but this has not threatened based on any of the
Recovery Plan (1993) is to protect and been applied to protect any C. vinaceum following five factors:
manage the habitats necessary to sustain sites. (A) The present or threatened
viable populations of the species. It destruction, modification, or
The development of management
recommends the following three criteria curtailment of its habitat or range;
plans to alleviate threats and ensure
to meet the plan’s goal to delist C. (B) Overutilization for commercial,
permanent protection of at least 75
vinaceum: recreational, scientific, or educational
percent of known occupied Cirsium
(1) Acquire water rights specifically purposes;
vinaceum habitats pursuant to criterion (C) Disease or predation;
for the maintenance of travertine spring (2) has not been achieved. Although (D) The inadequacy of existing
habitats at a minimum of 30 percent of management plans have been developed regulatory mechanisms; or
the occupied spring localities, including by the Lincoln National Forest to (E) Other natural or manmade factors
at least 1 occupied spring locality in address threats to C. vinaceum from affecting its continued existence.
each of the 20 known canyons of forestry practices, livestock grazing, and We must consider these same five
occurrence; trampling by recreationists, the plans factors in delisting a species. We may
(2) Develop habitat management plans have not resulted in permanently delist a species according to 50 CFR
to alleviate threats to the species and protecting 75 percent of the species’ 424.11(d) if the best available scientific
ensure permanent protection of at least occupied habitats. As described in the and commercial data indicate that the
75 percent of the known occupied ‘‘Summary of Information Pertaining to species is neither endangered nor
habitats, according to steps outlined in the Five Factors’’ below, exclosures threatened for the following reasons:
the plans. Sites should include both designed to protect some habitats (1) The species is extinct;
core populations at springs, as well as occupied by C. vinaceum from (2) The species has recovered and is
other occupied riparian habitats. trampling and predation have not been no longer endangered or threatened; or
Unoccupied stream habitat downstream
consistently maintained and have not (3) The original scientific data used at
of occupied springs should be protected been used correctly, and livestock the time the species was classified were
for future colonization by Cirsium grazing utilization standards and in error.
vinaceum; and rotation dates have not been A species is ‘‘endangered’’ for
(3) Establish a 10–year monitoring consistently enforced. As a result, even purposes of the Act if it is in danger of
and research program to demonstrate in areas where protection has been extinction throughout all or a
the effectiveness of management planned and attempted, C. vinaceum ‘‘significant portion of its range,’’ and is
implemented under the plans. has been impacted. In addition, C. ‘‘threatened’’ if it is likely to become
endangered within the foreseeable Factor A. The Present or Threatened when other water and forage plants are
future throughout all or a ‘‘significant Destruction, Modification, or not available. Springs and creeks
portion of its range.’’ For the purposes Curtailment of the Species’ Habitat or provide a majority of the watering sites
of this analysis, we will evaluate Range for both livestock and wildlife species,
whether the currently listed species, especially elk. These wet sites are
Availability of Water
Cirsium vinaceum, should be subject to trampling and hoof damage,
considered threatened or endangered. Cirsium vinaceum is an obligate and receive especially heavy use during
Then we will consider whether there are wetland species that requires surface or drought periods, when neither water nor
any portions of the range of C. vinaceum immediately subsurface water flows. It green forage are readily available
in which the status of the species differs occurs only on water-saturated elsewhere. At the end of the summer
from that determined for the species substrates of springs and seeps on grazing season in October, livestock
rangewide. hillsides and valley bottoms. Loss of water can again be in short supply, and
available water at C. vinaceum sites has impacts to C. vinaceum may increase as
The Act does not define the term been observed to lead to retractions of a result (USFS 2003, p. 56).
‘‘foreseeable future.’’ However, in a occurrence boundaries, a reduction in Water diversion due to current
January 16, 2009, memorandum the numbers of individuals, and, in activities. Appropriation of water rights
addressed to the Acting Director of the some cases, a loss of all plants at sites from springs for a use recognized by the
Service, the Office of the Solicitor, (USFS 2003, pp. 42–43; Barlow-Irick State of New Mexico as beneficial, such
Department of the Interior, concluded, 2007, pp. 1–2). Study results indicate as for livestock, farming, domestic, or
‘‘* * * as used in the [Act], Congress that declining and extirpated C. recreational facilities, typically uses
intended the term ‘foreseeable future’ to vinaceum sites are more frequently points of diversion that curtail natural
describe the extent to which the found in drier conditions than are sites surface flows, and thus may negatively
Secretary can reasonably rely on with stable or increasing populations impact Cirsium vinaceum. Additionally,
predictions about the future in making (Barlow-Irick 2007, pp. 1-2). Loss of the original C. vinaceum listing rule
determinations about the future water from C.vinaceum habitat occurs described an unauthorized 1,900 ft (579
conservation status of the species.’’ In a both naturally and as a result of human m) long pipeline and cement spring box
footnote, the memorandum states, ‘‘In impacts that cause water diversion constructed at a C. vinaceum site, which
this memorandum, references to directly and indirectly. Examples of negatively impacted nearby plants by
‘reliable predictions’ are not meant to naturally occurring water loss include impeding water flow (52 FR 22933; June
refer to reliability in a statistical sense. changes in precipitation patterns and 16, 1987). This unauthorized
Rather, I use the words ‘rely’ and watershed condition, as well as shifts in development of a spring near Bluff
‘reliable’ according to their common, travertine deposits and slopes (USFS Springs resulted in an 84-percent loss of
non-technical meanings in ordinary 2003, pp. 42-43). Water diversion by C. vinaceum at one site, from 300 plants
usage. Thus, for the purposes of this roads, trails, and spring development in 1984 to 47 plants in 1991 (Service
memorandum, a prediction is reliable if are examples of loss of water flow to 1993, p. 29).
it is reasonable to depend upon it in occupied sites due to human activity Drainage under roads was improved
making decisions’’ (M–37021, January (USFS 2003. pp. 42-43). in Water Canyon and the Rio Peñasco in
16, 2009). The majority of Cirsium Natural water loss. In the current a 2001-2002 riparian improvement
vinaceum habitat is on land within the decade, Cirsium vinaceum has project. Sites that were formerly
Lincoln National Forest. This land is experienced some drought conditions. occupied by Cirsium vinaceum were
publicly owned and managed by the Water flow at a number of springs returned to conditions suitable for
USFS. The USFS manages the land for occupied by C. vinaceum has declined reoccupation by the species with the
multiple uses, including livestock substantially. Monsoonal summer increased water availability afforded by
grazing and recreation. Consderable data precipitation can be very patchy, with this alteration, resulting in the
are available on the impacts such some areas receiving considerably less rehabitation of these areas by the
activities have had on C. vinaceum, and rainfall than others. While precipitation species (USFS 2004, p. 626).
data compiled by the Western Regional Increased water diversion due to
reliable predictions can be made
Climate Center for Cloudcroft indicate future population growth. The human
concerning future impacts to the species
that there was a shortfall of over 20 population in Otero County, New
under USFS management.
percent in mean rainfall in only 1 of the Mexico, increased by 20 percent from
In making this finding, we evaluated last 15 years (1999) (USFS 2003, pp. 1990 to 2000, and is expected to
the best scientific and commercial 53—54), the seasonal distribution of increase another 17.3 percent between
information available to determine yearly precipitation is significant and the years 2000 and 2030 (University of
whether delisting Cirsium vinaceum is can result in temporary drought New Mexico 2004, pp. 1-3). An
warranted. This information includes conditions for C. vinaceum. increasing human population and its
the updated petition and associated Monitoring of Cirsium vinaceum has associated agricultural and economic
documents, data from the 1990 through shown a simple and direct relationship activities will require additional water
2007 surveys (Barlow-Irick 2005, 2007, between water availability in suitable from this relatively dry region. For
2008), recent reports by Sivinski (2007, habitat and numbers and extent of example, between 2010 and 2040, the
2008) and the USFS (2008), as well as plants in occurrences (Huenneke, 1996, City of Alamogordo estimates its water
other information available to us, to pp. 149—150). As water flow has been demand will increase from 7,609 acre
determine whether delisting C. observed to decline at springs, decreases feet per year to 10,375 acre feet per year
vinaceum is warranted. The following in plant numbers and the size of (Office of the State Engineer 2003, pp.
analysis examines the five factors occurrences have occurred. The 3-4). Aquifers in the Sacramento
described in section 4(a)(1) of the Act situation has been observed to reverse Mountains are susceptible to impacts
and those activities and conditions when increased water is available from existing water rights. Development
currently affecting C. vinaceum, or (USFS 2003, pp. 55-56). Dry periods can of additional water rights could
likely to affect the species within the also increase the effects of livestock potentially dewater Cirsium vinaceum
foreseeable future. trampling and herbivory on C. vinaceum water sources, and this constitutes a
threat to the species in the foreseeable habitat (USFS 2003, pp. 42-44). Damage cover approximately 290 ac (120 ha) on
future. As discussed above, the State of to travertine crusts can adversely affect USFS lands. These exclosures protect
New Mexico adopted legislation surfaces critical to the successful about one-half of the habitat occupied
establishing a strategic water reserve to germination and reproduction of C. by C. vinaceum from negative impacts
manage water for interstate stream vinaceum and inhibit C. vinaceum seed associated with livestock use and have
augmentation to benefit threatened or movement and dispersal by flowing resulted in increased numbers of C.
endangered aquatic or obligate riparian water (USFS 2003, pp. 43-44). During vinaceum within many fenced sites
species (NM ST § 72-14-3.3, 2007). drought, the effects of compaction and (Service 2005, p. 698). Fences that are
Federal agencies are eligible to acquire trampling in drying travertine C. part of livestock exclosures are
such State-based water rights to benefit vinaceum sites may be even more occasionally knocked down or left open,
threatened or endangered aquatic or severe. This damage causes a loss of resulting in trampling of C. vinaceum
obligate riparian species, which may normal soil structure and permeability (USFS 2007, p. 4). Additionally, several
help to mitigate impacts of increased that may inhibit processes necessary for exclosures were never finished after
water diversion in the future. However, the development and establishment of their construction was initiated, and
to date, no action agency has acquired new plants when water flows return to others have not been maintained,
or attempted to acquire water rights to these sites. Trampling of C. vinaceum allowing livestock access to C.
benefit C. vinaceum. can reduce tissue needed for vinaceum habitats (Barlow-Irick 2008, p.
In summary, while water diversion metabolism, and damage seedlings, 1).
due to current activities does not appear rosettes, and flowering stalks (USFS The USFS has excluded livestock
to be a widespread threat at the current 2003, pp. 43-44). Broken flowering from many Cirsium vinaceum habitats
time, localized impacts have been stalks render affected C. vinaceum with fencing, often aiding in the
observed and increased use of water incapable of reproduction (USFS 2007, recovery of those populations. For
constitutes a threat in the foreseeable pp. 20-21). example, a site in Hubbell Canyon that
future. Natural loss of water is currently Prior to listing, instances were contained no known C. vinaceum in
a threat to Cirsium vinaceum. We will observed in which trampling from 1984 was able to support approximately
continue to monitor water availability livestock grazing had severely impacted 500 plants shortly after an exclosure
for C. vinaceum. Cirsium vinaceum (USFS 2003, p. 46). was constructed in 1991 (USFS 2003, p.
Todsen (1976, p. 1) reported that the C. 62). A grazing exclosure was built
Trampling by Livestock
vinaceum population in Silver Springs around a site in Lucas Canyon that
Improper livestock grazing, as it Canyon had only a few intermittent contained 350 plants in 1984, but
relates to trampling of habitat, was plants on the side of a fence where expanded to 3,414 C. vinaceum by 1991.
recognized as a threat to Cirsium livestock were permitted to graze. In A wet meadow above Bluff Springs that
vinaceum in the 1987 listing rule (52 FR 1978, the USFS reported that C. contained only one C. vinaceum plant
22933; June 16, 1987). In that notice, the vinaceum in a wet meadow above Bluff in 1976 has supported hundreds of C.
authors report that many sites Springs occurred only within a small vinaceum since 1984, when a livestock
previously occupied by C. vinaceum fenced-in area that excluded livestock exclosure was built (USFS 2003, p. 62).
appear to be suitable for habitation by and not in the adjacent grazed habitat. At present, 40 of 86 sites located within
the species; however, the populations The USFS later reported in 1984 that the Lincoln National Forest have been
that formerly occurred there had been recent livestock exclusions from some fenced to exclude livestock or are
reduced or eliminated by livestock habitats at Silver Springs, Bluff Springs, considered to be inaccessible to
impacts (52 FR 22933; June 16, 1987). and Rio Peñasco had ‘‘led to a livestock due to steep slopes or cliffs
Livestock have the potential for large remarkable increase in numbers of (Todsen 1976, p. 1; Service 2005, p.
impacts to the species, both by Cirsium vinaceum,’’ while the 698).
trampling, discussed below, and by population in Lucas Canyon was As previously discussed, exclosures
predation through grazing, discussed ‘‘considerably smaller’’ because of protect Cirsium vinaceum from several
under Factor C. livestock (USFS 2003, p. 44). In a Lucas grazing impacts, including trampling of
Ninety-five percent of Cirsium Canyon study, C. vinaceum rosettes plants and habitat, and herbivory of
vinaceum localities occur on USFS were markedly smaller at a site grazed rosettes, flowering stalks, and seedlings.
lands within grazing allotments by livestock (mean rosette diameter They have allowed C. vinaceum
accessed by livestock. Cirsium approximately 4.85 to 8.87 in (12.3 to populations to recover inside and even
vinaceum habitats on travertine springs 22.5 cm)) adjacent to an excluded expand beyond fenced areas in a few
and in the valley bottoms provide the population subject only to grazing by cases (Service 2005, p. 698). However,
majority of watering locations for elk (mean rosette diameter livestock exclosures around C.
livestock and elk, subjecting this fragile approximately 20.27 to 29.17 in (51.5 to vinaceum habitats have not been
habitat to frequent trampling. One site at 74.1 cm)). Furthermore, this consistently maintained. Due to
Silver Springs on the James Allotment discrepancy was observed for 24 months unmaintained fences, some exclosures
has been closed to livestock since 1995. after grazing pressure had been are available for the gathering or
The C. vinaceum population in this alleviated (Thomson and Huenneke relocation of cattle (USFS 2003, p. 53;
allotment has grown in response to 1990, pp. 9-10). 2007, p. 20; Barlow-Irick 2008, p. 1).
being rested from livestock, and recent The effects of trampling have resulted Two of the larger fenced areas
information indicates that this single in declines or disappearance of Cirsium containing C. vinaceum habitats have
allotment contained 36 percent of all vinaceum at sites (Fletcher 1979, p. 3; been and continue to be used as grazing
flowering stems for the species (USFS 52 FR 22933; June 16, 1987). The USFS exclosures during the grazing season,
2003, p. 44). has minimized some of the trampling and then used to gather cattle at
Trampling of Cirsium vinceum and its impacts of concentrated use by livestock season’s end (USFS 2003, p. 53; Service
habitat by livestock and humans has and elk by enclosing C. vinaceum 2010, p. 1). Such practices have had
caused damage to travertine formations habitats with fences; however, no new adverse impacts on C. vinaceum plants
and outflow creek beds, resulting in fences or protected areas have been and sites by way of increased grazing
altered water flow to C. vinaceum created since 1999. Exclosures currently and presence of livestock which destroy
seedlings, fragile travertine habitat, and reducing impacts to the species climate change indicates that New
the flowering stalks of plants, thereby (Fletcher 1979, p. 3; 52 FR 22933; June Mexico will be impacted by the effects
preventing reproduction by affected 16, 1987). Indirect effects from logging, of climate change (Agency Technical
plants (Service 2010). such as road construction, siltation, Work Group 2005, p. 1). However,
In summary, although many sites alteration of hydrologic flows, increased reliable predictive models have not yet
have been protected, up to 50 percent of surface water runoff, decreased been developed for use at the local scale
sites are still subject to grazing infiltration, and higher sediment loads in New Mexico’s Sacramento
pressures, and those that are fenced may in streams, are additional potential Mountains, and there is little certainty
be impacted into the future as fences fall impacts to C. vinaceum habitat that can regarding the timing and magnitude of
into disrepair or are vandalized (Service result from forestry activities (Service the resulting impacts. There is currently
2010, p. 1). Furthermore, if Cirsium 1993, p. 28). At present, our information no information specific to the effects of
vinaceum were to be delisted, there is indicates that the USFS applies a climate change on Cirsium vinaceum or
little likelihood that maintenance and minimum 200 ft (61-m) protective buffer its habitat; however, based on
construction of exclosures would around C. vinaceum occurrences during projections made by the IPCC, we
continue in the future. Therefore, forest management activities and consider climate change to be a
livestock trampling is a significant, excludes all equipment from wetland potential exacerbating factor, worsening
ongoing threat to C. vinaceum that is areas with C. vinaceum habitat (Service the impacts of other known threats.
expected to continue in the foreseeable 2002, p. 3; Service 2004, pp. 4–13). These threats include habitat
future. These buffers are in accordance with the degradation from water loss resulting
Recreation guidelines of the Lincoln National from prolonged periods of drought and
Forest’s Interim Management Plan increased temperature, and the
Cirsium vinaceum at Bluff Springs are (USFS 1989, p. 4). This active allocation of water for use by the human
impacted by trampling due to human management by the USFS has mitigated population and livestock in the area, as
recreation. The Land and Resource effects of ground disturbance on USFS well as any number of unforeseen
Management Plan for the Lincoln lands, where 95 percent of the species compounding effects. In summary, we
National Forest (2004, p. 628) prescribes is located. We do not consider ground do not currently consider climate
managing Bluff Springs for dispersed disturbance from logging or its change itself to be a factor affecting C.
recreation, while providing for C. associated direct and indirect effects to vinaceum’s persistence, because the
vinaceum management. Cirsium be a current threat to C. vinaceum. information available on the subject is
vinaceum stands in this area have been insufficiently specific to the species.
fenced and foot trails rerouted since Climate Change
However, we consider climate change to
1983 to protect this population (USFS The Intergovernmental Panel on be a potential exacerbating factor and
2003, p. 46). Soon after construction of Climate Change (IPCC) states that will continue to evaluate new
the fence, C. vinaceum increased at this warming of the climate system is information on the subject as it becomes
location, but since 1995, the number of unequivocal based on observations of available.
individuals has fluctuated, with an increases in global average air and ocean In summary for Factor A, we continue
overall downward trend. In 2005, the temperatures, widespread melting of to consider water availability and
number of flowering stems was 486, less snow and ice, and rising global average trampling caused by livestock to be
than one-third of the 1,600 plant total in sea level (2007a, p. 5). For the next two threats to Cirsium vinaceum and its
1995. Recreational users at Bluff Springs decades, a warming of about 0.4 degrees habitat currently and in the foreseeable
continue to impact C. vinaceum Fahrenheit (°F) (0.2 degrees Celsius (°C)) future. We find the information
annually as users trespass into the per decade is projected (IPCC 2007a, p. available on climate change to be
fenced area and vandalize plants and 12). Temperature projections for the insufficiently specific to C. vinaceum to
trample habitat (Barlow-Irick 2008, p. following years increasingly depend on indicate with certainty that it is
1). Impacts from recreational users specific emission scenarios (IPCC 2007a, affecting the species and its habitat at
continue to be a threat to C. vinaceum p. 13). Various emissions scenarios this time; however, we will continue to
at Bluff Springs, but are not known to suggest that average global temperatures evaluate the most up-to-date
be impacting other populations. Thus, are expected to increase by between information on the subject as it becomes
recreation is not considered a threat to 1.1°F and 7.2°F (0.6°C and 4.0°C) by the available.
the species rangewide now or in the end of the 21st century, with the
greatest warming expected over land Factor B. Overutilization for
foreseeable future.
(IPCC 2007a, p. 13). Warming in western Commercial, Recreational, Scientific, or
Logging mountains is projected to cause Educational Purposes
Cirsium vinaceum sites have been decreased snowpack, more winter We do not have any data suggesting
subjected to direct and indirect impacts flooding, and reduced summer flows, that Cirsium vinaceum is, or may be,
from land uses that damage travertine exacerbating competition for over- overutilized for commercial,
substrates and their hydrological allocated water resources (IPCC 2007b, recreational, scientific, or educational
characteristics. Some of the roads and p. 14). The IPCC reports that it is very purposes. Cirsium vinaceum seeds and
trails that support regional access for likely that hot extremes, heat waves, seed heads have been collected for
timber harvest and management, and heavy precipitation and flooding research projects intended to
ranching operations, recreation, and will increase in frequency (IPCC 2007b, understand and improve the status of
residential developments occur in, or p. 18). Because Cirsium vinaceum the species. The species’ current level of
adjacent to, C. vinaceum habitats. Prior occupies a relatively small area of State and Federal protection requires
to, and at the time of listing, there was specialized habitat, it may be vulnerable permits from the Service, USFS, and the
concern that ground disturbance from to climatic changes that could decrease State of New Mexico for such research.
road construction and logging could suitable habitat. At current levels of collection, we do
potentially impact C. vinaceum habitats We find that there are limitations in not consider overutilization for
if project planning for logging currently available data and climate commercial, recreational, scientific, or
operations did not consider avoiding or models. The information available on educational purposes to be a threat
currently or in the foreseeable future. If 2008, and 2009, before most of the because it requires less energy; however,
the species were delisted, permits for flowers had set seed, resulting in nearly with this form of reproduction, genetic
collection would continue to be complete die-off of flowering stems each material from only one plant is required,
required by the USFS and the State of of these years (Sivinski 2008, p. 9; so clones are produced. Populations that
New Mexico. 2009b, p. 1). Insect damage to the Silver are reduced to recruitment via only
Springs population was two-fold; asexual reproduction could suffer from
Factor C. Disease or Predation
Rhinocyllus conicus and Paracantha loss of genetic variation. The resulting
Insect Predation gentilis reduced seed production earlier clones may not be able to adapt to even
Native insect population fluctuations in the flowering season, then L. moderate changes to their environment,
and invasions of nonnative insects may pervestitus damaged flowering stems including the arrival of new insect
impact the condition, reproduction, and into early fall (Sivinski 2007, p. 13). The predators or diseases. Many C.
distribution of Cirsium vinaceum. population totaled 8,727 stems in the vinaceum sites are small or occur on
Cirsium vinaceum is host to an summer of 2007, and by the end of marginal habitats where they can
undetermined number of native and September of the same year, 98 percent disappear during extreme conditions. If
nonnative insect species that prey upon of these stems were prematurely dead or insect predation eliminates seed
the plant and its flower heads. Native dying. The timing of L. pervestitus’ production in larger populations, such
insect seed predators can consume from attack left seed maturity and production as Silver Springs, the smaller patches
to only the earliest blooming flower that temporarily disappear may not be
17 to 98 percent of C. vinaceum’s seed
heads, greatly reducing this re-established. In addition, genetic
production within a population.
population’s reproductive output for the exchange through sexual reproduction
Observed seed predators include
season. Immature C. vinaceum rosettes between sites would discontinue and
Paracantha gentilis, a native specialist
were not significantly affected by any further reduce genetic variability of the
Tephritid gall fly; Platyptilia
native or nonnative insects during the species.
carduidactyla, the native Pterophorid In summary, insect seed predation
study (Sivinski 2007, p. 14). However,
artichoke plume moth; Euphoria inda, a and herbivory of Cirsium vinaceum
this recent addition of this invasive seed
native generalist Scarabaeid bumble eliminated seed production in the
predator, L. pervestitus, will likely
flower beetle; and Rhinocyllus conicus, majority of plants at all of the study
further decrease seed production and
an introduced Curculionid seed-head increase the threat to the persistence of sites in all 3 years of the study. This
weevil (Sivinski 2007, pp. 2-14; Sivinski some C. vinaceum populations. Small C. condition is either very likely to spread
2008, pp. 1-11). A fifth insect predator, vinaceum sites may be more likely to be to other C. vinaceum sites, or is already
Lixus pervestitus, the native extirpated because of seed limitations, occurring at other sites. For these
Curculionid stem borer weevil, was first and some sites could remain reasons, we find that insect predation,
detected during field surveys in 2006 unoccupied if adjacent sites of C. even within sites containing large
and 2007 (Sivinski 2007, pp. 8-13; vinaceum are producing and dispersing numbers of C. vinaceum, represents a
Sivinski 2008, pp. 7-11). Thus far, L. fewer seeds. significant new category of threat
pervestitus has not been found on C. The recovery plan for C. vinaceum currently and in the foreseeable future.
vinaceum outside of the Silver Springs identified Rhinocyllus conicus as a
population, and little is known about Livestock Grazing
potential threat to the species (Service
this insect species in New Mexico 1993, p. 6). Rhinocyllus conicus, Grazing of Cirsium vinaceum by
(Sivinski 2008, pp. 10-11). Sivinski indigenous to Eurasia, was intentionally livestock and elk was described as
studied insect seed predation and introduced to North America in 1969 as minimal in the 1987 listing
herbivory of C. vinaceum in September a biological control agent for the determination (52 FR 22933).
of 2006, 2007, and 2008 in four noxious weed Carduus nutans (musk Subsequent monitoring of herbivore
populations: Silver Springs, Bluff thistle). It subsequently spread to at impacts at several C. vinaceum sites has
Springs, Upper Rio Peñasco, and Scott least 26 States on both C. nutans and determined that this species is a forage
Able Canyon. These insect species native thistle species, and is also plant for livestock and, although not
damaged flower heads or caused frequently distributed by deliberate preferred, appears to be part of the cattle
premature stem death in all years of the introduction on both private and public diet throughout its range (USFS 2003, p.
study. By September 2007, these insects lands (Dodge 2005, p. 6). The ability of 49). C. vinaceum rosettes that have been
had collectively damaged flowering R. conicus to attack native thistle grazed by livestock early in the growing
stalks in significant proportions—up to species and decrease their seed season have the ability to make
98 percent within the Silver Springs production has been documented compensatory growth if grazing ceases;
site, 80 percent of the Bluff Springs site, (Dodge 2005, pp. 15-38). A preliminary however, flower stems that are
up to 66 percent in the Upper Rio field study of the presence and damage destroyed or severely damaged by
Peñasco site, and 90 percent of the Scott of R. conicus in the Silver Springs area grazing later in the season do not
Able Canyon site (Sivinski 2007, p. 12). found the weevil using 63.8 percent of recover, and the plant dies without
After predation by these insects, seed C. vinaceum flower heads in mid-July producing seeds (USFS 2003, p. 49).
production was significantly reduced in 2007 (Sivinski 2008, p. 9). Grazing can adversely impact growth,
2007, particularly as a result of L. The reduction of seed production due vigor, seedling establishment, and
pervestitus in the Silver Springs to seed predators could have long-term reproductive output, and small C.
population. effects on the viability of populations. vinaceum sites may be more vulnerable
Lixus pervestitus is likely a recent Although Cirsium vinaceum can and at a higher risk of extirpation than
immigrant to the Sacramento Mountains reproduce asexually, that is, without the larger sites (USFS 2003, p. 55).
and represents a significant new threat genetic contribution of another C. Although Cirsium vinaceum
to the long-term persistence of the vinaceum individual, it is not known populations have been documented to
species (Sivinski 2007, p. 13). Lixus how long a site can persist with little or recover within a few weeks from light
pervestitus was responsible for killing no seed production (Sivinski 2009a, p. grazing on fewer than 10 percent of
thousands of Cirsium vinaceum at Silver 1). Asexual reproduction can be plants, grazing of the plants’ flowering
Springs in September of 2006, 2007, advantageous in a stable environment stalk and leaves of rosettes can cause
total loss of reproduction and can lead sites and individuals. In 2001, the plants and sites, as increased grazing
to the loss of the affected population Sacramento Grazing Allotment pressure further destroys the flowering
(USFS 2003, p. 55). Cirsium vinaceum’s contained 74 of 86 occupied C. stalks of plants and thereby prevents
low tolerance for freezing and drought vinaceum sites found on the Lincoln successful reproduction by affected
may compound the effects of livestock National Forest. This represented a total plants.
grazing. Herbivory of seedlings, of 96 percent of all C. vinaceum in 2001 In summary, although many Cirsium
particularly in spring, may reduce the (USFS 2003a, p. 53). Thirty-eight of vinaceum sites have been protected, up
density of plants and leave seedlings these 74 sites are either fenced to to 50 percent of sites are still subject to
more exposed to low temperatures. exclude livestock or are considered to livestock herbivory, and those that are
Livestock grazing during periods of be inaccessible to livestock (USFS 2003, fenced may be impacted into the future
long-term drought may also affect C. p. 53). As of 2007, 68 of the 75 occupied as fences fall into disrepair or are
vinaceum’s ability to recover sites were within the Sacramento vandalized (Service 2010, p. 1).
reproductive capability. Barlow-Irick Grazing Allotment, with approximately Furthermore, if C. vinaceum were to be
(2005, p. 1) surveyed 85 C. vinaceum 62 percent of the total number of C. delisted, past history indicates there is
monitoring sites in the late summer of vinaceum stems for the species (Barlow- little reason to expect that adequate
2005, after the first wet season following Irick 2007, p. 1). In March 2007, the maintenance and construction of
several years of drought. The overall USFS proposed to extend the grazing exclosures would continue in the future.
number of flowering C. vinaceum was rotation to allow cattle to be present Therefore, livestock herbivory is a
still decreasing, but five sites exhibited throughout the entire summer growing significant, ongoing threat to C.
increased numbers of flowering season (May to October) on portions of vinaceum that will continue in the
individuals. These five sites were the allotment containing C. vinaceum. foreseeable future.
excluded from livestock. Furthermore, The previous arrangement placed Disease
long-term monitoring trends show livestock in one pasture from May to
correlations between C. vinaceum, Barlow-Irick (2007, p. 1; 2008, p. 1)
August, and then deferred the same
herbivores, and water availability. recently reported that the large
livestock to another pasture from
Cirsium vinaceum populations with population of Cirsium vinaceum in
August to October, thus reducing C.
above-average numbers of reproductive Firman Canyon and isolated individuals
vinaceum’s exposure to livestock
individuals are associated with sites in other populations appeared to have
approximately one-half of the time.
that exhibit consistently greater levels of unspecified symptoms of disease during
Season-long presence of livestock
water flow and lower levels of livestock 2007. This potential disease was not
within both pastures would increase
grazing, compared to sites with lower identified, nor had any positively
livestock impacts to C. vinaceum during
average water flows and increased levels identified disease been reported in any
times when the species could benefit
of grazing (Barlow-Irick 2007, p. 1). C. vinaceum population. No specific
from grazing deferral. The extended
Livestock grazing in USFS allotments assessment of potential disease threats
presence of livestock may adversely
containing Cirsium vinaceum habitats is has been conducted. We do not
affect seedlings and their rate of
permitted from May to October, and currently consider disease to be a threat
successful establishment and
herbivory on C. vinaceum occurs in all to C. vinaceum; however, we intend to
recruitment into the population (USFS
of these months (USFS 2007, p. 20). continue monitoring populations for
2007, p. 20). Moreover, broken or
During a 1992 study of livestock grazing impact due to this factor.
consumed flowering stems render In summary for Factor C, we consider
on C. vinaceum, use peaked in June,
affected C. vinaceum incapable of predation by insects and livestock to be
with 76 percent of accessible rosettes
reproduction (USFS 2003, p. 55). As threats to Cirsium vinaceum currently
grazed, and again in September and
described under Factor A, longer and in the foreseeable future. We do not
October, with over 90 percent of
exposure to livestock also increases the currently consider disease to be a threat
accessible rosettes grazed (USFS 2003,
chances of damage to travertine to the species; however, we need to
p. 48). Although C. vinaceum may be
substrates, water flow channels, and continue monitoring for impacts due to
able to persist under this grazing regime,
wetlands upon which C. vinaceum this factor.
there are recognized adverse effects to
depends (USFS 2007, p. 20). As of
the species (USFS 2003, pp. 54—57). Factor D. The Inadequacy of Existing
publication date, this proposal is under
Adverse effects include significant Regulatory Mechanisms
differences between rosette size and leaf consultation with the Service.
length between grazed and ungrazed Established thresholds for forage of Cirsium vinaceum is currently listed
occurrences, with the smaller Cirsium vinaceum have been exceeded as threatened under the Act. The Act
measurements for both found in on USFS lands many times, especially and its implementing regulations at 50
occurrences grazed by livestock. A during drought years when livestock CFR 17.71 and 17.72 establish a series
reduction of plant tissue and size can congregate in wetland C. vinaceum of general prohibitions and exceptions
adversely impact growth, vigor, habitats or where forage production is that apply to all threatened plants. All
reproductive potential, and the ability of greater than in dry uplands (USFS 2003, trade prohibitions of section 9(a)(2) of
the plants to compete with invasive pp. 59-67). Very dry conditions early in the Act, implemented by 50 CFR 17.71,
weeds. C. vinaceum has also been the summer of 1996 led to an emergency apply. These prohibitions, in part, make
observed to only make one attempt per consultation with the Service that it illegal for any person subject to the
rosette at producing a flowering stalk. If resulted in use of temporary electric jurisdiction of the United States to
that stalk is lost to herbivory, fencing to minimize impacts to C. import or export, to transport in
reproductive potential for that plant is vinaceum (USFS 2003, p. 63). At other interstate or foreign commerce in the
lost (USFS 2003, pp. 54—57). times, the USFS has allowed grazing course of a commercial activity, or to
Grazing practices in the Sacramento permittees 30 days or more to remove sell or offer for sale this species in
Allotment are sufficiently significant to their livestock after use thresholds had interstate or foreign commerce, or to
influence the general status of Cirsium been reached or exceeded (USFS 2003, remove and reduce to possession the
vinaceum because this allotment pp. 59-60). Exceeding threshold levels species from areas under Federal
contains the majority of C. vinaceum can have adverse effects to C. vinaceum jurisdiction. In addition, for plants
listed as endangered, the Act prohibits If Cirsium vinaceum were delisted, it (Sivinski 2006, p. 7). Cirsium parryi is
malicious damage or destruction on would continue to be designated a USFS relatively common through much of the
areas under Federal jurisdiction and sensitive species, as described in USFS Sacramento Mountains and has been
further prohibits the removal, cutting, Manual 2670 (USFS 2008). The USFS found to occasionally hybridize with C.
digging up, or damaging or destroying of Manual 2672.1 provides the following vinaceum at a few locations (Barlow-
such plants in knowing violation of any direction for the management of Irick 2007, p. 1). Cirsium wrightii
State law or regulation, including State sensitive species: ‘‘Sensitive species of (Wright’s marsh thistle) is another
criminal trespass laws. Section 4(d) native plant and animal species must wetland thistle that overlaps with C.
allows for the provision of such receive special management emphasis to vinaceum at Silver Springs; hybrid
protection to threatened species through ensure their viability and to preclude offspring are uncommon (Sivinski 2006,
regulation. This protection does not trends toward endangerment that would p. 7). Huenneke (1996, pp. 148-149)
currently apply to C. vinaceum. result in the need for Federal listing.’’ hypothesized that hybridization
As with all federally listed plants, USFS biologists review all USFS between C. vinaceum and C. parryi was
Federal land management actions and planned, funded, executed, or permitted a potential threat to C. vinaceum. It has
other project proposals that use Federal programs and activities for possible been hypothesized that Cirsium species
funding or require a Federal permit that effects on endangered, threatened, of remarkably different morphologies
may affect C. vinaceum must be proposed, or sensitive species. are able to hybridize, but only the
evaluated by the Federal action agency It is prohibited to remove from USFS presence of a complex collection of
in consultation with the Service under lands any plant that is classified as a hybrids, produced when there is a
section 7(a)(2) of the Act. Through threatened, endangered, sensitive, rare, breakdown of isolating barriers between
consultation, the Federal action agency or unique species (36 CFR Part two species with overlapping
ensures that an action will not likely 261.9(d)). Therefore, Cirsium vinaceum distributions, would indicate
jeopardize C. vinaceum or destroy or is protected from ‘‘taking’’ in the hybridization had reached the level of a
adversely modify critical its designated National Forest by these Federal threat (Kiel 2006, p. 1). During the 2007
critical habitat. If the proposed project regulations (Service 1987, p. 22935). surveys, hybrids between C. vinaceum
is likely to jeopardize the species, the Exceptions to these prohibitions are and C. parryi were found at many sites
Service will provide the Federal action available through permits (36 CFR Part (Barlow-Irick 2007, p. 1). Above-average
agency reasonable and prudent 261.1a). If C. vinaceum were delisted, precipitation in 2007 may have favored
alternatives for implementing the permits for its collection for scientific or the germination and survival of these
action. Regardless of the outcome of this conservation purposes on USFS lands hybrids. It is unknown if the hybrid
determination, the Service will also would continue to be required. These plants are viable and if incorporation of
provide discretionary conservation permits provide additional oversight genes through repeated crossing from C.
recommendations that would eliminate and limit impacts from potential over- parryi into the C. vinaceum population
the impacts to C. vinaceum or its collection. is possible (Barlow-Irick 2007, p. 1).
habitat. Adoption of these measures If delisted, Cirsium vinaceum would Neither the viability of these hybrid
may also contribute to a Federal action be monitored for at least 5 years to offspring, nor their ability to hybridize
ensure that the species would not be at with the parent species, has been
agency’s requirements under section
risk of extinction during that time. A studied. Therefore, it is not known at
7(a)(1) of the Act to utilize their
post-delisting monitoring plan would this time whether hybridization with
authorites to carry out programs for the
likely include thresholds indicating other Cirsium species could become a
conservation of listed species. These
when a status review would be threat in the foreseeable future;
procedures would not be required if C.
warranted. If delisted, C. vinaceum however, it does not appear to be a
vinaceum were delisted, and significant
could also benefit from regulatory threat at present. The potential for
reductions in recovery effort and
protection as a USFS sensitive species, hybridization to become a threat to C.
protection would likely result. As a
but there would likely be less impetus vinaceum in the future needs to
delisted species, C. vinaceum would
to implement and maintain protective continue to be monitored and evaluated.
continue to be protected by the Lacey
Act (83 Stat. 279–281, 18 U.S.C. 42–44 measures for a sensitive species than for Herbicide Use
et seq; as amended), which prohibits a Federally listed species. Under its
In 2000, a biological assessment for
trade in wildlife and plants that have current status, the species is impacted
noxious weed management prepared by
been illegally taken, possessed, by livestock trampling and herbivory,
the USFS proposed to use only selective
transported, or sold. However, the Lacey and impacts resulting from
spot application of herbicides, hand-
Act does not afford protection of habitat, noncompliance on USFS lands. These
pulling, or use of various hand tools to
and were it delisted, C. vinaceum would activities have affected the species’ experimentally treat noxious weeds
lose its current level of habitat reproductive success and overall within some selected Cirsium vinaceum
protection. viability. Therefore, we conclude that sites (Sivinski 2006, p. 21). Herbicides
The State of New Mexico lists Cirsium regulatory mechanisms are not adequate are not considered a threat to C.
vinaceum as endangered under the New to support removing the protections of vinaceum sites on USFS lands;
Mexico Endangered Plant Species Act, the Act. however, if herbicides are applied to C.
9-10-10 New Mexico Statutes Annotated Factor E. Other Natural or Manmade vinaceum on private land, the site could
(NMSA). This law prohibits the taking, Factors Affecting the Species’ Continued be impacted. For example, in June 2007,
possession, transportation, exportation, Existence on Federal Highway 82 in Otero County,

selling, or offering for sale any listed many C. vinaceum rosettes on private
plant species. Under this act, listed Hybridization land were injured or killed by
species can only be collected under The range of another native thistle misapplication of herbicide during a
permit from the State of New Mexico for species, Cirsium parryi (Parry’s thistle), road maintenance project conducted by
scientific studies and impact mitigation; overlaps with that of Cirsium vinaceum, the State of New Mexico Department of
however, this law does not provide and it is capable of crossbreeding with Transportation (Tonne 2007, p. 1).
protection for C. vinaceum habitat. C. vinaceum to produce hybrid offspring Similarly, maintenance of the Federal
Highway 82 right-of-way by a State The Sacramento Mountains presently endangered throughout all or a
highway crew also reportedly impacted lack large, aggressive, exotic wetland significant portion of its range. We have
C. vinaceum plants and habitat on non- weeds, such as Lythrum salicaria carefully examined the best scientific
USFS lands between Cloudcroft and (purple loosestrife), which could and commercial information available
High Rolls prior to 2007 (USFS 2003, p. dominate Cirsium vinaceum habitat. regarding the past, present, and future
22). Potential solutions for such Lythrum salicaria is a Eurasian species threats faced by C. vinaceum. We
accidental misapplication of herbicide that has been modifying wetlands and reviewed the petition, information
to C. vinaceum plants are under outcompeting native species in North available in our files, and other
development among staff of the New America for many decades (Natural available published and unpublished
Mexico Department of Transportation Resources Conservation Service 2006, p. information, and we consulted with
and Department of Forestry, New 2). Lythrum salicaria appeared in New recognized C. vinaceum experts and
Mexico Natural Heritage Program, Mexico in the 1990s and is extant in the other Federal, State, and tribal agencies.
USFS, and the Service (Tonne 2007, p. Mimbres Mountains of Grant County In our review of the status of Cirsium
1). Effects from herbicide use continue and Sandia Mountains of Bernalillo vinaceum, we identified a number of
to impact C. vinaceum along highways County. The Sandia Mountains potential threats to this species,
and on non-Federal land, but are not occurrence of this invasive weed covers including water diversion, trampling by
known to be impacting most sites. Thus, an alkaline spring seep similar to C. livestock and recreationists, predation
herbicides are not considered a threat to vinaceum habitats in the Sacramento by livestock and insects, disease;
the species now or in the foreseeable Mountains (Sivinski 2006, p. 15). If it inadequacy of regulatory mechanisms,
future. also spreads to the Sacramento hybridization; herbicide use, and exotic
Mountains, this aggressive wetland weeds. To determine whether these
Exotic Weeds factors individually or collectively put
weed could impact C. vinaceum habitat.
Exotic plant species associated with At the time of listing, it was thought the species in danger of extinction
Cirsium vinaceum habitats include that competition with exotics Dipsacus throughout its range, or are likely to do
Dipsacus fullonum (teasel), Carduus fullonum and Carduus nutans had so in the foreseeable future, we first
nutans (musk thistle), Conium reduced or eliminated populations of considered whether the risk factors
maculatum (poison hemlock), Cirsium Cirsium vinaceum at sites where it had significantly affected C. vinaceum, or
arvense (Canada thistle), Cirsium formerly grown (52 FR 22933; June 16, were likely to do so in the future.
vulgare (bull thistle), Daucus carota 1987). These two weed species have We found natural loss of water,
(Queen Anne’s lace), Taraxicum invaded some C. vinaceum sites, but trampling by livestock, predation by
officinale (dandelion), Nasturtium they occupy slightly drier habitat (USFS livestock and insects, and the
officinale (watercress), Tragopogon 2004, p. 625). Dipsacus fullonum and C. inadequacy of existing regulatory
pratensis (salsify), and Verbascum nutans occurrences are being monitored mechanisms to be significant threats to
thapsus (mullein) (Huenneke 1996, pp. on USFS lands. At this time, we have no C. vinaceum. We found lack of ensured
146-147; Sivinski 2006, pp. 9-10). Of information suggesting that competition water availability, increased water
these, the exotic species that may have among C. vinaceum and these exotic diversion, and the spread of insect
the capacity to compete with the C. plants is a significant threat. Similarly, predators by exotic weeds may threaten
vinaceum for light and possibly for we have no information establishing C. vinaceum in the foreseeable future.
water under drier conditions include D. Conium maculatum, Cirsium arvense, or We also considered the ways in which
fullonum, C. nutans, C. vulgare, and C. Cirsium vulgare as immediate threats to the effects of climate change are likely
maculatum (Huenneke and Thomson C. vinaceum. However, C. nutans may to exacerbate the impacts caused by the
1995, p. 423; Huenneke 1996, pp. 146- be serving as a vector for Rhinocyllus above factors in the foreseeable future.
147). The presence of these four conicus, the exotic seed head weevil, As a wetland obligate species, Cirsium
invasive plant species in and near C. discussed under Factor C (Sivinski vinaceum occurs exclusively at springs,
vinaceum habitat has been observed and 2006a, pp. 6, 13; Gardner and seeps, and drainage areas that are often
monitored for many years. Of these, Thompson 2008, p. 1). Future widely dispersed and collectively
only C. maculatum is an obligate interactions among C. nutans, R. comprise the significant portions of C.
wetland species; however, it does not conicus, and C. vinaceum are unclear at vinaceum’s range. Recent declines in
appear to compete well with C. this time. Based on possible interactions reproducing C. vinaceum numbers and
vinaceum (Barlow-Irick 2005, p. 1). The with water availability, climate change, population sites, combined with the
three other weed species require some and preference for similar growth lack of ensured water availability,
soil moisture, but cannot tolerate the conditions, these exotic weeds could harmful levels of herbivory and
continuously saturated substrates that potentially threaten C. vinaceum in the trampling from noncompliant grazing
are typical in C. vinaceum patches on future; however, we do not believe they practices, predation by insects, and the
spring habitats. These weeds can grow pose a threat at present. inadequacy of existing regulatory
side by side with C. vinaceum in drier In summary for Factor E, we do not mechanisms, lead us to conclude that C.
habitat margins and in sediment currently consider hybridization or vinaceum should retain its current
deposited by flowing water, where C. herbicide use as threats to the species; listing status as a threatened species. We
vinaceum is subirrigated (irrigated from however, these may become threats in have determined that Cirsium vinaceum
beneath the ground surface) and the root the future. Similarly, we do not consider is not now in danger of extinction, but
systems of these weeds occupy the drier exotic weeds as a threat to the species is likely to become endangered in the
surface soils near the surface (Sivinski now; however, they could potentially foreseeable future based on the expected
2006, p. 15). As of September 2007, C. threaten Cirsium vinaceum in the persistence of these threats, including
nutans was infesting much of the foreseeable future. increased water diversion and increased
Lincoln National Forest and continued insect predation in the foreseeable
to mix with C. vinaceum without Finding future.
directly impacting the survival of C. As required by the Act, we considered Our evaluation of the five factors does
vinaceum through competition (Gardner the five factors in assessing whether not support the assertion that threats
and Thompson 2007, p. 8). Cirsium vinaceum is threatened or have been removed or that their
imminence, intensity, or magnitude has identify only those portions that warrant portion may contribute to resiliency for
been reduced sufficiently to prevent further consideration, we determine other reasons—for instance, it may
substantial losses of population whether there is substantial information contain an important concentration of
distribution or viability of Cirsium indicating that: (1) The portions may be certain types of habitat that are
vinaceum. We find that C. vinaceum is significant, and (2) the species may be necessary for the species to carry out its
likely to become an endangered species in danger of extinction there or likely to life-history functions, such as breeding,
within the foreseeable future throughout become so within the foreseeable future. feeding, migration, dispersal, or
all of its range and should remain In practice, a key part of this analysis is wintering.
classified as a threatened species. whether the threats are geographically Redundancy of populations may be
Therefore, delisting the species as concentrated in some way. If the threats needed to provide a margin of safety for
threatened under the Act is not to the species are essentially uniform the species to withstand catastrophic
warranted at this time. throughout its range, no portion is likely events. This does not mean that any
to warrant further consideration. portion that provides redundancy is
Significant Portion of the Range
Moreover, if any concentration of necessarily a significant portion of the
Having determined that Cirsium threats applies only to portions of the range of a species. The idea is to
vinaceum is likely to become species’ range that are not significant, conserve enough areas of the range such
endangered within the foreseeable such portions will not warrant further that random perturbations in the system
future throughout all or a significant consideration. act on only a few populations.
portion of its range, we must next If we identify portions that warrant Therefore, each area must be examined
consider whether there are any further consideration, we then based on whether that area provides an
significant portions of its range that are determine whether the species is increment of redundancy that is
currently in danger of extinction. The threatened or endangered in these important to the conservation of the
Act defines an endangered species as portions of its range. Depending on the species.
one ‘‘in danger of extinction throughout biology of the species, its range, and the
all or a significant portion of its range,’’ Adequate representation ensures that
threats it faces, the Service may address
and a threatened species as one ‘‘likely the species’ adaptive capabilities are
either the significance question or the
to become an endangered species within conserved. Specifically, the portion
status question first. Thus, if the Service
the foreseeable future throughout all or should be evaluated to see how it
considers significance first and
a significant portion of its range.’’ The contributes to the genetic diversity of
determines that a portion of the range is
term ‘‘significant portion of its range’’ is the species. The loss of genetically
not significant, the Service need not
not defined by the statute. For the based diversity may substantially
determine whether the species is
purposes of this finding, a significant reduce the ability of the species to
threatened or endangered there.
portion of a species’ range is an area that respond and adapt to future
Likewise, if the Service considers status
is important to the conservation of the first and determines that the species is environmental changes. A peripheral
species because it contributes not threatened or endangered in a population may contribute meaningfully
meaningfully to the representation, portion of its range, the Service need not to representation if there is evidence
resiliency, or redundancy of the species. determine if that portion is significant. that it provides genetic diversity due to
The contribution must be at a level such However, if the Service determines that its location on the margin of the species’
that its loss would result in a decrease both a portion of the range of a species habitat requirements.
in the ability to conserve the species. is significant and the species is Based upon factors that contribute to
On March 16, 2007, a formal opinion threatened or endangered there, the our analysis of whether a species or
was issued by the Solicitor of the Service will specify that portion of the subspecies is in danger of extinction
Department of the Interior, ‘‘The range as threatened or endangered throughout all or a significant portion of
Meaning of ‘In Danger of Extinction under section 4(c)(1) of the Act. its range, and in consideration of the
Throughout All or a Significant Portion The terms ‘‘resiliency,’’ ‘‘redundancy,’’ status of, and threats to, C. vinaceum
of Its Range,’’ (USDI 2007c). We have and ‘‘representation’’ are intended to be discussed previously, we find that the
summarized our interpretation of that indicators of the conservation value of primary threats to the continued
opinion and the underlying statutory portions of the range. Resiliency of a existence of C. vinaceum occur
language below. A portion of a species’ species allows the species to recover throughout all of its range. We do not
range is significant if it is part of the from periodic disturbance. A species have any data suggesting that the
current range of the species and it will likely be more resilient if large identified threats to the species are
contributes substantially to the populations exist in high-quality habitat concentrated in any portion of the range
representation, resiliency, or that is distributed throughout the range such that C. vinaceum may be in danger
redundancy of the species. The of the species in such a way as to of extinction in that portion. Therefore,
contribution must be at a level such that capture the environmental variability it is not necessary to conduct further
its loss would result in a decrease in the found within the range of the species. A analysis with respect to the significance
ability to conserve the species. portion of the range of a species may of any portion of its range.
In determining whether a species is make a meaningful contribution to the Conclusion
threatened or endangered in a resiliency of the species if the area is
significant portion of its range, we first relatively large and contains particularly On the basis of the best scientific and
identify any portions of the range of the high-quality habitat, or if its location or commercial information available, we
species that warrant further characteristics make it less susceptible find that the magnitude and imminence
consideration. The range of a species to certain threats than other portions of of threats indicate that Cirsium
can theoretically be divided into the range. When evaluating whether or vinaceum is likely to become an
portions in an infinite number of ways. how a portion of the range contributes endangered species within the
However, there is no purpose to to resiliency of the species, we evaluate foreseeable future throughout all of its
analyzing portions of the range that are the historical value of the portion and range and should remain classified as a
not reasonably likely to be significant how frequently the portion is used by threatened species. Therefore, we find
and threatened or endangered. To the species, if possible. In addition, the that delisting C. vinaceum is not
warranted throughout all or a significant ACTION: Extension of public comment MacPherson, USFWS (ph. 904–731–
portion of its range at this time. period; Notice of public hearing. 3336, e-mail
We request that you submit any new sandy_macpherson@fws.gov), Marta
information concerning the status of, or SUMMARY: NMFS and USFWS hereby Nammack, NMFS (ph. 301–713–1401,
threats to, Cirsium vinaceum to our New extend the comment period on the fax 301–713–0376, e-mail
Mexico Ecological Services Field Office proposed listing of nine distinct marta_nammack@noaa.gov), or Emily
(see ADDRESSES section) whenever it population segments of loggerhead sea Bizwell, USFWS (ph. 404–679–7149, fax
becomes available. New information turtles as endangered or threatened, 404–679–7081, e-mail
will help us monitor C. vinaceum and which was published on March 16, emily_bizwell@fws.gov). Persons who
encourage its conservation. If an 2010, until September 13, 2010. In use a Telecommunications device for
emergency situation develops for C. addition, NMFS and USFWS will hold the deaf (TDD) may call the Federal
vinaceum or any other species, we will a public hearing in Berlin, MD, on June Information Relay Service (FIRS) at 1–
act to provide immediate protection. 16, 2010 to answer questions and 800–877–8339, 24 hours a day, 7 days
receive public comments. a week.
References Cited DATES: Comments and information
SUPPLEMENTARY INFORMATION: On March
A complete list of all references cited regarding this proposed rule must be 16, 2010, NMFS and USFWS issued a
in this finding is available upon request received by September 13, 2010. See proposed rule to list nine distinct
from the New Mexico Ecological SUPPLEMENTARY INFORMATION for the
population segments (DPSs) for the
Services Field Office (see FOR FURTHER specific date, time and location of the loggerhead sea turtle (Caretta caretta)
INFORMATION CONTACT). public hearing. that qualify as ‘‘species’’ for listing as
ADDRESSES: You may submit comments, endangered or threatened under the
Author
identified by RIN 0648–AY49, by any of Endangered Species Act (ESA), and the
The primary authors of this rule are the following methods: Services proposed to list two as
the New Mexico Ecological Services • Electronic Submissions: Submit all threatened and seven as endangered.
Field Office staff members (see FOR electronic public comments via the NMFS and USFWS subsequently
FURTHER INFORMATION CONTACT). Federal eRulemaking Portal: http:// received several requests to extend the
www.regulations.gov. public comment period for an
Authority • Mail: NMFS National Sea Turtle
additional 60–120 days. NMFS and
The authority for this action is the Coordinator, Attn: Loggerhead Proposed
USFWS have determined that an
Endangered Species Act of 1973, as Listing Rule, Office of Protected
extension of 90 days, until September
amended (16 U.S.C. 1531 et seq.). Resources, National Marine Fisheries
13, 2010, making the full comment
Dated: May 17, 2010 Service, 1315 East-West Highway, Room
period 180 days, will allow adequate
Gregory E. Siekaniec, 13657, Silver Spring, MD 20910 or
time for the public to thoroughly review
USFWS National Sea Turtle
Acting Director, Fish and Wildlife Service. and thoughtfully comment on the
Coordinator, U.S. Fish and Wildlife
[FR Doc. 2010–12909 Filed 6–1–10; 8:45 am] proposed rule.
Service, 7915 Baymeadows Way, Suite
Billing Code 4310–55–S NMFS and USFWS received a request
200, Jacksonville, FL 32256.
• Fax: To the attention of NMFS for a public hearing to be held in
National Sea Turtle Coordinator at 301– Maryland. In response to that request,
DEPARTMENT OF INTERIOR 713–0376 or USFWS National Sea the date, time and location of the public
Turtle Coordinator at 904–731–3045. hearing is as follows:
Fish and Wildlife Service Wednesday, June 16, 2010, 6 p.m. to
Instructions: All comments received
are a part of the public record and will 9 p.m., Berlin, MD: Worcester County
50 CFR Part 17 Library Ocean Pines Branch, 11107
generally be posted to http://
www.regulations.gov without change. Cathell Road, Berlin, MD 21811;
DEPARTMENT OF COMMERCE Meeting Room.
All Personal Identifying Information (for
example, name, address, etc.) This hearing will be physically
National Oceanic and Atmospheric accessible to people with disabilities.
Administration voluntarily submitted by the commenter
may be publicly accessible. Do not Requests for sign language
submit Confidential Business interpretation or other auxiliary aids
50 CFR Parts 223 and 224 should be directed to Sara McNulty,
Information or otherwise sensitive or
protected information. NMFS, Office of Protected Resources,
RIN 0648–AY49 NMFS and USFWS will accept 301–713–2322, at least five business
anonymous comments (enter N/A in the days prior to the hearing date.
Endangered and Threatened Species;
required fields, if you wish to remain Authority: 16 U.S.C. 1531 et seq.
Proposed Listing of Nine Distinct
anonymous). Attachments to electronic Dated: May 27, 2010.
Population Segments of Loggerhead
comments will be accepted in Microsoft James H. Lecky,
Sea Turtles as Endangered or
Word, Excel, WordPerfect, or Adobe
Threatened; Extension of Comment Director, Office of Protected Resources,
PDF file formats only. The proposed National Marine Fisheries Service.
Period
rule is available electronically at http://
AGENCY: National Marine Fisheries www.nmfs.noaa.gov/pr. Gary Frazer,
Service (NMFS), National Oceanic and FOR FURTHER INFORMATION CONTACT: Assistant Director for Endangered Species,
Atmospheric Administration (NOAA), Barbara Schroeder, NMFS (ph. 301– U.S. Fish and Wildlife Service.
Commerce; United States Fish and 713–1401, fax 301–713–0376, e-mail [FR Doc. 2010–13190 Filed 5–27–10; 4:15 pm]
Wildlife Service (USFWS), Interior. barbara.schroeder@noaa.gov), Sandy BILLING CODE 3510–22–S
30770
Notices Federal Register

Vol. 75, No. 105
This section of the FEDERAL REGISTER OMB Number: 0563–0070. information is estimated to average: 30
contains documents other than rules or Expiration Date of Approval: minutes per response for agreement
proposed rules that are applicable to the November 30, 2010. holders for a total of 360 hours.
public. Notices of hearings and investigations, Type of Request: Extension and Respondents/Affected Entities: Not-
committee meetings, agency decisions and revision of a currently approved for-profit institutions; Business or other
rulings, delegations of authority, filing of information collection.
petitions and applications and agency for-profit; State, local, or tribal
Abstract: The Federal Crop Insurance government.
statements of organization and functions are
Act directs the Federal Crop Insurance Estimated annual number of
examples of documents appearing in this
section. Corporation, operating through RMA, to respondents: 180 respondents.
(a) establish crop insurance education Estimated annual number of
and information programs in States that responses: 720 responses or 4 per
DEPARTMENT OF AGRICULTURE have been historically underserved by respondent.
the Federal crop insurance program [7
Estimated total annual burden on
Risk Management Agency U.S.C. 1524(a)(2)]; and (b) provide
respondents: 360 hours.
agricultural producers with training
Notice for Extension and Revision of a opportunities in risk management, with Signed in Washington, DC, on May 27,
Currently Approved Information a priority given to producers of specialty 2010.
Collection crops and underserved commodities [7 William J. Murphy,
U.S.C. 1522(d)(3)(F)]. With this Manager, Federal Crop Insurance
AGENCY: Risk Management Agency, Corporation.
submission, RMA seeks to obtain
USDA. approval for Risk Management and Crop [FR Doc. 2010–13254 Filed 6–1–10; 8:45 am]
ACTION: Notice and request for Insurance Education Activity Log— BILLING CODE 3410–08–P
comments. Form RME–300, in order to collect
information and monitor certain
SUMMARY: In accordance with the
educational activities. Agreement DEPARTMENT OF AGRICULTURE
Paperwork Reduction Act of 1995, this
holders are required to record specific
notice announces the intention of the Federal Crop Insurance Corporation
information about each educational
Risk Management Agency (RMA) to
activity conducted under the agreement
request an extension and revision to a Notice of Request for Extension of a
in an activity log and submit the form
currently approved information Currently Approved Information
to RMA as part of the required quarterly
collection. Collection
progress report. In addition, RMA will
DATES: Written comments on this notice use the information provided by AGENCY: Federal Crop Insurance
will be accepted until close of business agreement holders to ensure that funded Corporation, USDA.
August 2, 2010. educational projects are progressing. ACTION: Notice and request for
ADDRESSES: Interested persons are We are asking the Office of
comments.
invited to submit comments by any of Management and Budget (OMB) to
the following methods: approve this information collection SUMMARY: In accordance with the
• By Mail to: Sundii Johnson Phillips, activity for 3 years. Paperwork Reduction Act of 1995 (44
Risk Management Education Division, The purpose of this notice is to solicit U.S.C. Chapter 35) this notice
USDA/RMA, 1400 Independence comments from the public concerning announces the Risk Management
Avenue, SW., Stop 0808, Room 5720, this information collection activity. Agency’s intention to request an
Washington, DC 20250–0808. These comments will help us: extension to a currently approved
• E-Mail: RMA.Risk- (1) Evaluate whether the proposed information collection for the
Ed@rma.usda.gov. collection of information is necessary submission of policies, provisions of
All comments will be available for for the proper performance of the policies and rates of premium under
public inspection during regular functions of the agency, including section 508(h) of the Federal Crop
business hours at the same address. All whether the information has practical Insurance Act.
responses to this notice will be utility; This notice announces a public
summarized and included in the request (2) Evaluate the accuracy of the
comment period on the information
for OMB approval. All comments will agency’s estimate of the burden of the
collection requests (ICRs) associated
also become a matter of public record. proposed collection of information;
(3) Enhance the quality, utility, and with DATES: Written comments on this
FOR FURTHER INFORMATION CONTACT: To clarity of the information to be notice will be accepted until close of
request additional information on the collected; and business August 2, 2010.
proposed collection of information (4) Minimize the burden of the ADDRESSES: Interested persons are
contact: Sundii Johnson Phillips, Risk collection of information on those who invited to submit comments, titled
sroberts on DSKD5P82C1PROD with NOTICES
Management Education Division USDA/ are to respond, through use, as ‘‘Information Collection OMB 0563–
RMA, Stop 0808, 1400 Independence appropriate, of automated, electronic, 0064’’, by any of the following methods:
Ave., SW., Washington, DC 20250–0808, mechanical, and other collection • By Mail to: Director, Product
or call (202) 720–5265. technologies, e.g., permitting electronic Administration and Standards Division,
SUPPLEMENTARY INFORMATION: submission of responses. Risk Management Agency, United States
Title: Risk Management and Crop Estimate of burden: The public Department of Agriculture, Beacon
Insurance Education Activity Log. reporting burden for this collection of Facility—Mail Stop 0812, Room 421, PO
VerDate Mar<15>2010 19:08 Jun 01, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\02JNN1.SGM 02JNN1
Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices 30771
Box 419205, Kansas City, MO 64141– (3) Enhance the quality, utility, and Coordinator Rita Vollmer at (530) 226–
6205. clarity of the information to be 2595 or rvollmer@fs.fed.us.
• E–Mail: collected; and SUPPLEMENTARY INFORMATION: The
DirectorPDD@rma.usda.gov. (4) Minimize the burden of the meeting is open to the public. Public
• Federal eRulemaking Portal: http:// collection of information on those who input sessions will be provided and
www.regulations.gov. Follow the are to respond, through use, as individuals will have the opportunity to
instructions for submitting comments. appropriate, of automated, electronic, address the Shasta County Resource
A copy of each response will be mechanical, and other collection Advisory Committee.
available for public inspection and technologies, e.g., permitting electronic
copying from 7 a.m. to 4:30 p.m., submission of responses.
Estimate of burden: The public Brenda Tracy,
Central Time, Monday through Friday,
except holidays, at the above address. reporting burden for this collection of Acting Forest Supervisor, Shasta-Trinity
information is estimated to average 472 National Forest.
FOR FURTHER INFORMATION CONTACT: Erin
hours per response. [FR Doc. 2010–13291 Filed 6–1–10; 8:45 am]
Albright, Risk Management Specialist,
Product Management, Product Respondents/Affected Entities: Parties BILLING CODE 3410–11–P
Administration and Standards Division, affected by the information collection

Risk Management Agency, United States requirements included in this Notice is
a person (including an approved DEPARTMENT OF AGRICULTURE
Department of Agriculture, Beacon
Facility, Stop 0812, Room 421, PO Box insurance provider, a college or Forest Service
419205, Kansas City, MO 64141–6205, university, a cooperative or trade
telephone (816) 926–7730. association, or any other person) who Tuolumne-Mariposa Counties
prepares a submission, or proposes to Resource Advisory Committee
the Board other crop insurance policies,
Title: General Administrative AGENCY: Forest Service, USDA.
provisions of policies, or rates of
Regulations; Subpart V—Submission of ACTION: Notice of meeting.
premium.
Policies, Provisions of Policies, and
Estimated annual number of
Rates of Premium. SUMMARY: The Tuolumne-Mariposa
respondents: 556.
OMB Number: 0563–0064. Estimated annual number of Counties Resource Advisory Committee
Expiration Date of Approval: responses per respondent: 47. will meet on June 14, 2010, at the City
November 30, 2010. Estimated annual number of of Sonora Fire Department, in Sonora,
Type of Request: Extension of a responses: 260. California. The purpose of the meeting
currently approved information Estimated total annual burden hours is to hear presentations made by project
collection. on respondents: 122,836. proponents requesting RAC funding.
Abstract: FCIC is proposing to renew All responses to this notice will be DATES: The meeting will be held June
the currently approved information summarized and included in the request 14, 2010, from 12 p.m. to 3 p.m.
collection, OMB Number 0563–0064. It for OMB approval. All comments will ADDRESSES: The meeting will be held at
is currently up for renewal and also become a matter of public record. the City of Sonora Fire Department
extension for three years. Subpart V located at 201 South Shepherd Street, in
Signed in Washington, DC on May 27,
establishes guidelines for the Sonora, California (CA 95370).
2010.
submission of policies or other materials FOR FURTHER INFORMATION CONTACT: Beth
William J. Murphy,
to the Federal Crop Insurance Board of Martinez, Committee Coordinator,
Directors (Board) and identifies the Manager, Federal Crop Insurance
Corporation. USDA, Stanislaus National Forest,
required contents of a submission: The 19777 Greenley Road, Sonora, CA 95370
timing, review, and confidentiality [FR Doc. 2010–13252 Filed 6–1–10; 8:45 am]
(209) 532–3671, extension 320; e-mail
requirements; reimbursement of BILLING CODE 3410–08–P
bethmartinez@fs.fed.us.
research and development costs,
maintenance costs, and use fees; and SUPPLEMENTARY INFORMATION: Agenda
guidelines for nonreinsured DEPARTMENT OF AGRICULTURE items to be covered include: (1)
supplemental policies. This data is used Presentation of primarily Forest Service
Forest Service project submittals by project
to administer the Federal crop insurance
program in accordance with the Federal proponents; (2) Public comment on
Shasta County Resource Advisory
Crop Insurance Act, as amended. meeting proceedings. This meeting is
Committee
FCIC is requesting the Office of open to the public.
Management and Budget (OMB) to AGENCY: Forest Service, USDA. Dated: May 1, 2010.
extend the approval of this information ACTION: Notice of meeting. Susan Skalski,
collection for an additional 3 years. Forest Supervisor.
SUMMARY: The Shasta County Resource
The purpose of this notice is to solicit [FR Doc. 2010–12926 Filed 6–1–10; 8:45 am]
comments from the public concerning Advisory Committee (RAC) will meet at
this information collection. These the USDA Service Center in Redding, BILLING CODE 3410–ED–M
comments will help us: California, on June 17, 2010, from 8:30
(1) Evaluate whether the proposed a.m. to 12 noon. The purpose of this
meeting is to discuss project proposals DEPARTMENT OF AGRICULTURE
collection of information is necessary
for the proper performance of the and vote on recommended projects.

Forest Service
functions of the agency, including DATES: Thursday, June 17 at 8:30 a.m.
whether the information has practical ADDRESSES: The meeting will be held at Kisatchie National Forest Resource
utility; the USDA Service Center, 3644 Avtech Advisory Committee
(2) Evaluate the accuracy of the Parkway, Redding, California 96002.
AGENCY: Forest Service, USDA.
agency’s estimate of the burden of the FOR FURTHER INFORMATION CONTACT:
ACTION: Notice of meeting.
proposed collection of information; Resource Advisory Committee
30772 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Notices
SUMMARY: The Kisatchie National Forest DEPARTMENT OF AGRICULTURE Dated: May 26, 2010.
Resource Advisory Committee will meet Alan E. Koss,
in Natchitoches, Louisiana. The Forest Service Designated Federal Official.
committee is meeting as authorized [FR Doc. 2010–13105 Filed 6–1–10; 8:45 am]
under the Secure Rural Schools and Southern New Mexico Resource
BILLING CODE 3410–11–M
Community Self-Determination Act Advisory Committee
(Pub. L 110–343) and in compliance AGENCY: Forest Service, USDA.
with the Federal Advisory Committee ACTION: Notice of meeting. AGENCY FOR INTERNATIONAL
Act. The purpose is to hold the first DEVELOPMENT
meeting of the newly formed committee. SUMMARY: The Southern New Mexico
Resource Advisory Committee will meet Notice of Public Information
DATES: The meeting will be held on June
in Socorro, New Mexico. The committee Collections Being Reviewed by the
29, 2010, and will begin at 7 p.m.
is meeting as authorized under the U.S. Agency for International
ADDRESSES: The meeting will be held at Secure Rural Schools and Community Development; Comments Requested
the Natchitoches Events Center, Meeting Self-Determination Act (Pub. L. 110–
SUMMARY: U.S. Agency for International
Room #3, 750 2nd Street, Natchitoches, 343) and in compliance with the Federal
LA. Written comments should be sent to Advisory Committee Act. The purpose Development (USAID) is making efforts
Holly Morgan, Kisatchie National of the meeting is to develop operating to reduce the paperwork burden. USAID
Forest, 2500 Shreveport Highway, protocols. invites the general public and other
Pineville, LA 71360. Comments may Federal agencies to take this
DATES: The meeting will be held June opportunity to comment on the
also be sent via e-mail to 22, 2010, 10 a.m. following proposed and/or continuing
hmorgan@fsfed.us, or via facsimile to
ADDRESSES: The meeting will be held at information collections, as required by
318–473–7117.
901 Highway 85, Socorro Bureau of the Paperwork Reduction Act for 1995.
All comments, including names and Land Management field office. Written Comments are requested concerning:
addresses when provided, are placed in comments should be sent to Mr. Al (a) Whether the proposed or continuing
the record and are available for public Koss, HC 68, Box 50, Mimbres, NM collections of information are necessary
inspection and copying. The public may 88049–9301. Comments may also be for the proper performance of the
inspect comments received at Kisatchie sent via e-mail to alkoss@fs.fed.us, or functions of the agency, including
National Forest, 2500 Shreveport via facsimile to 575–520–2551. whether the information shall have
Highway, Pineville, LA 71360. Visitors All comments, including names and practical utility; (b) the accuracy of the
are encouraged to call ahead to 318– addresses when provided, are placed in burden estimates; (c) ways to enhance
473–7160 to facilitate entry into the the record and are available for public the quality, utility, and clarity of the
building. inspection and copying. The public may information collected; and (d) ways to
inspect comments received at the minimize the burden of the collection of
FOR FURTHER INFORMATION CONTACT: Wilderness Ranger District, HC 68, Box information on the respondents,
Holly Morgan, RAC coordinator, USDA, 50, Mimbres, NM 88049–9301. Visitors including the use of automated
Kisatchie National Forest, 2500 are encouraged to call ahead to 575– collection techniques or other forms of
Shreveport Highway, Pineville, LA 536–2250 to facilitate entry into the information technology.
71360; (318) 473–7194; E-mail building. DATES: Submit comments on or before
hmorgan@fs.fed.us.
FOR FURTHER INFORMATION CONTACT: Mr. August 2, 2010.
Individuals who use Al Koss, Designated Federal Official, ADDRESSES: Send comments via e-mail
telecommunication devices for the deaf 575–536–2250 or alkoss@fs.fed.us. at ssegal@usaid.goggl@usaid.gov or mail
(TDD) may call the Federal Information Individuals who use comments to: Sabrina Segal, Office of
Relay Service (FIRS) at 1–800–877–8339 telecommunication devices for the deaf the General Counsel (A/GC) United
between 8 a.m and 8 p.m., Eastern (TDD) may call the Federal Information States Agency for International
Standard Time, Monday through Friday. Relay Service (FIRS) at 1–800–877–8339 Development, Ronald Reagan Building,
SUPPLEMENTARY INFORMATION: The between 8 a.m. and 8 p.m., Eastern 1300 Pennsylvania Avenue, NW.,
meeting is open to the public. The Standard Time, Monday through Friday. Washington, DC 20523 (202) 712–5409.
following business will be conducted: SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT:
(1) Introductions of all committee meeting is open to the public. The Beverly Johnson, Bureau for
members, replacement members and following business will be conducted: Management, Office of Administrative
Forest Service personnel. (2) Selection (1) Introductions of all committee Services, Information and Records
of a chairperson by the committee members, replacement members, and Division, U.S. Agency for International
members. (3) Receive materials Forest Service personnel; (2) selection of Development, Room 2.07–106, RRB,
explaining the process for considering a chairperson by the committee Washington, DC 20523. (202) 712–1365
and recommending Title II projects; and members; (3) receive materials or via e-mail bjohnson@usaid.gov.
(4) Public Comment. Persons who wish explaining the process for considering SUPPLEMENTARY INFORMATION:
to bring related matters to the attention and recommending Title II projects; and OMB No.: OMB 0412–New.
of the Committee may file written (4) public Comment. Persons who wish Form No.: N/A.
statements with the Committee staff to bring related matters to the attention Title: USAID’s Implementation and
before or after the meeting. of the Committee may file written Procurement Reform Survey.
Dated: May 12, 2010. statements with the Committee staff Type of Review: New information
before or after the meeting. Public input collection.
Michael L. Balboni,
sessions will be provided and Purpose: The U.S. Agency for
Designated Federal Officer. individuals who made written requests International Development (USAID) is
[FR Doc. 2010–13099 Filed 6–1–10; 8:45 am] by June 15 will have the opportunity to requesting authorization to conduct an
BILLING CODE 3410–11–M address the Committee at those sessions. electronic survey as one of the steps in
USAID’s Implementation and Alexandria, VA 22313–1450; by re-align organization quality control

Procurement Reform Working Group telephone at 571–272–4951; or by e-mail measures with applicant demand by
process. We would like to ask some of at gerard.torres@uspto.gov with division.
our implementing partners from the ‘‘Paperwork’’ in the subject line. The Patent Applicant Survey is a mail
non-profit and contracting community SUPPLEMENTARY INFORMATION: survey, although respondents have the
to indicate their level of interaction and option to complete the survey
reactions to the financial data currently I. Abstract electronically. They may also provide
available on USAID’s Web site. This For several years the USPTO has their responses verbally over the
will be the first step towards concrete supported an ongoing forecasting telephone. A survey packet, containing
improvements to the accessibility, program for patent application filings the survey, a cover letter explaining the
availability, and ease of use of that includes the use of quantitative and purpose of and outlining instructions
information. qualitative methodologies. Given the for completing the survey, and a
Annual Reporting Burden: importance of accurate application postage-paid, pre-addressed return
Respondents: 100. filing forecasts, the USPTO considers envelope will be mailed to all survey
Total annual responses: 100. more than one type of methodology. As groups. The USPTO plans to survey four
Total annual hours requested: 25 part of this strategy, information from a groups of respondents: Large domestic
hours. survey of the inventor community is corporations (including those with 500+
Dated: May 20, 2010. included when formulating application employees), small and medium-size
filing forecasts. In addition to using the businesses, universities and non-profit
Robert Miranda,
survey as part of a comprehensive research organizations, and independent
Director, Office of Administrative Services,
approach to forecasting, the USPTO is inventors. The USPTO does not plan to
Bureau for Management.
also using this tool in response to survey foreign entities and will rely on
[FR Doc. 2010–12865 Filed 6–1–10; 8:45 am]
Senate Appropriations Report 106–404 the European Patent Office (EPO) and
BILLING CODE 6116–01–M (September 8, 2000). This report the Japan Patent Office (JPO) to provide
directed the USPTO to ‘‘develop a forecasts of application filings by
workload forecast with advice from a foreign entities. Due to variances in
DEPARTMENT OF COMMERCE representative sample of industry and filing and the varying needs of the
the inventor community.’’ A patent different patent applicant populations,
Patent and Trademark Office application filing survey assists the the USPTO has developed two versions
USPTO in better understanding key of the survey: One for the large domestic
United States Patent Applicant Survey
factors driving future application filings, corporations and small and medium-
ACTION: Proposed collection; comment such as newly emerging technologies. size businesses and one for universities,
request. The USPTO developed the United non-profit research organizations, and
States Patent Applicant Survey as part independent inventors.
SUMMARY: The United States Patent and of the continuing effort to better predict The surveys do not have USPTO form
Trademark Office (USPTO), as part of its the future growth of patent application numbers associated with them and once
continuing effort to reduce paperwork filings by understanding applicant they are approved, they will carry the
and respondent burden, invites the intentions. The main purpose of this OMB Control Number and the
general public and other Federal survey is to determine the number of expiration date of the information
agencies to take this opportunity to application filings that the USPTO can collection.
comment on the extension of a currently expect to receive over the next three
approved collection, as required by the years from patent-generating entities, II. Method of Collection
Paperwork Reduction Act of 1995, ranging from large domestic By mail or electronically over the
Public Law 104–13 (44 U.S.C. corporations to independent inventors. Internet when respondents elect the
3506(c)(2)(A)). In recent decades, the rate of patent online option to complete the survey.
application filings to the USPTO
DATES: Written comments must be III. Data
steadily increased with expanding
submitted on or before August 2, 2010. technological innovations. However, OMB Number: 0651–0052.
ADDRESSES: You may submit comments newly emerging technologies, evolving Form Number(s): None.
by any of the following methods: business patenting strategies, patent Type of Review: Extension of a
• E-mail: valuations and costs, and intellectual currently approved collection.
InformationCollection@uspto.gov. property legislative changes, among Affected Public: Business or other for
Include ‘‘0651–0052 comment’’ in the other factors, may significantly impact profit; not-for-profit institutions.
subject line of the message. patent applicants’ decisions to file Estimated Number of Respondents:
• Fax: 571–273–0112, marked to the applications at the USPTO. These 400 responses per year. Of this total, the
attention of Susan K. Fawcett. factors cannot easily be accounted for in USPTO expects that 267 surveys will be
• Mail: Susan K. Fawcett, Records other methodologies or sufficient completed using the online option.
Officer, Office of the Chief Information information is not available from Estimated Time Per Response: The
Officer, U.S. Patent and Trademark databases or other sources. Therefore, it USPTO estimates that it will take
Office, P.O. Box 1450, Alexandria, VA is necessary for the USPTO to conduct approximately 30 minutes (0.50 hours)
22313–1450. the Patent Applicant Survey to obtain for all of the patent applicant
• Federal e-Rulemaking Portal: information directly from applicants. populations to provide their responses,
http://www.regulations.gov. The information will allow the agency with the exception of the independent
FOR FURTHER INFORMATION CONTACT: to anticipate demand and estimate inventors. The USPTO estimates that it
Requests for additional information future revenue flow more reliably; to will take independent inventors
should be directed to the attention of identify input and output triggers and approximately 15 minutes (0.25 hours)
Gerard Torres, Economist, Office of allocate resources to meet and to provide their responses. These
Corporate Planning, U.S. Patent and understand customer needs; and to estimates include the time to gather the
Trademark Office, P.O. Box 1450, reassess output and capacity goals and necessary information, complete the
survey, and submit it to the USPTO. The property lawyers, a legal assistant estimated hourly rate used for the legal
USPTO believes that it will take the specializing in intellectual property rate assistants specializing in intellectual
same amount of time to complete the of $100, and a rate of $20 for the property is based on the rates for the
surveys whether they are completed on majority of the respondents, the USPTO 2008 National Utilization and
paper and mailed to the USPTO or believes that the average hourly rate for Compensation Survey, published in
completed and submitted electronically. completing these surveys will be March 2008 by the National Association
Estimated Total Annual Respondent approximately $122 ($101 + $9 + $12). of Legal Assistants (NALA). Due to the
Burden Hours: 140 hours per year. The professional rate used for the many different occupations that can
Estimated Total Annual Respondent intellectual property lawyers is based on possibly be held by the majority of
Cost Burden: $17,080 per year. The the median rate for attorneys in private respondents, the USPTO is estimating
USPTO estimates that 31% of the firms as published in the 2009 report of
$20 per hour as the hourly rate for those
respondents completing these surveys the Committee on Economics of Legal
respondents. Therefore, the USPTO
will be lawyers, about 9% will be legal Practice of the American Intellectual
assistants, and 60% will have diverse Property Law Association. This report estimates that the salary costs for the
occupations. Using the professional summarized the results of a survey with respondents completing these surveys
hourly rate of $325 for intellectual data on hourly billing rates. The will be $17,080.
Estimated Estimated Estimated

time for
Item annual annual
response responses burden hours
(minutes)
Large Domestic Corporations ...................................................................................................... 30 27 14

Large Domestic Corporations (electronic surveys) ..................................................................... 30 53 27
Small and Medium-Size Businesses ........................................................................................... 30 18 9
Small and Medium-Size Businesses (electronic surveys) .......................................................... 30 37 19
Universities and Non-Profit Research Organizations .................................................................. 30 5 3
Universities and Non-Profit Research Organizations (electronic surveys) ................................. 30 10 5
Independent Inventors ................................................................................................................. 15 83 21
Independent Inventors (electronic surveys) ................................................................................ 15 167 42
Total ...................................................................................................................................... ........................ 400 140
Estimated Total Annual Non-Hour they will also become a matter of public activation limit for a general-purpose
Respondent Cost Burden: $0 per year. record. zone project. The application was
There are no capital start-up, submitted pursuant to the Foreign-Trade
Susan K. Fawcett,
maintenance, or recordkeeping costs Zones Act, as amended (19 U.S.C. 81a-
Records Officer, USPTO, Office of the Chief
associated with this collection. Information Officer.
81u), and the regulations of the Board
Respondents do not submit filing or (15 CFR part 400). It was formally filed
[FR Doc. 2010–13163 Filed 6–1–10; 8:45 am]
other fees with the surveys. The USPTO on May 21, 2010.
provides postage-paid, pre-addressed FTZ 46 was approved by the Board on
return envelopes for the completed mail January 12, 1979 (Board Order 141, 44
surveys so there are no postage costs DEPARTMENT OF COMMERCE F.R. 4003, January 19, 1979). On
associated with this information December 19, 1994 the zone was
collection. Foreign-Trade Zones Board relocated and expanded (Board Order
[Docket 41–2010] 720, 59 F.R. 66891, December 28, 1994).
IV. Request for Comments The zone was further expanded on
Comments are invited on: (a) Whether Foreign-Trade Zone 46–Cincinnati, December 15, 1997 (Board Order 943, 62
the proposed collection of information Ohio; Application for Reorganization/ FR 67044, December 23, 1997),
is necessary for the proper performance Expansion Under Alternative Site December 15, 1999 (Board Order 1070,
Framework 64 F.R. 72643, December 28, 1999) and
of the functions of the agency, including
whether the information shall have An application has been submitted to December 29, 2000 (Board Order 1135,
practical utility; (b) the accuracy of the the Foreign-Trade Zones (FTZ) Board 66 F.R. 3985, January 17, 2001).
agency’s estimate of the burden (the Board) by the Greater Cincinnati The general-purpose zone includes
(including hours and cost) of the Foreign-Trade Zone, Inc., grantee of FTZ the following sites: Site 1 (35 acres)—
proposed collection of information; (c) 46, requesting authority to reorganize Avon Products, Inc., 175 Progress Place,
ways to enhance the quality, utility, and and expand the zone under the Springdale (Hamilton County); Site 2
clarity of the information to be alternative site framework (ASF) (122 acres)—Cincinnati Machine, 4701
collected; and (d) ways to minimize the adopted by the Board (74 FR 1170, 1/12/ Marburg Avenue, Cincinnati (Hamilton
burden of the collection of information 09; correction 74 FR 3987, 1/22/09). The County); Site 3 (833 acres)—Clermont
on respondents, e.g., the use of ASF is an option for grantees for the County Industrial Park, 4165 Half Acre
automated collection techniques or establishment or reorganization of Road, Batavia (Clermont County); Site 4
other forms of information technology. general-purpose zones and can permit (490 acres)—Brown County Industrial
significantly greater flexibility in the Park, 418 W. Main Street, Mt. Orab
Comments submitted in response to designation of new ‘‘usage-driven’’ FTZ (Brown County); and, Site 5 (160
this notice will be summarized or sites for operators/users located within acres)—Harrison Commerce Park,
included in the request for OMB a grantee’s ‘‘service area’’ in the context Southwest Parkway, Harrison (Hamilton
approval of this information collection; of the Board’s standard 2,000-acre County).
The grantee’s proposed service area DEPARTMENT OF COMMERCE governmental voting members, one non-
under the ASF would be Hamilton, governmental non-voting youth
Butler, Warren, Brown and Clermont National Oceanic and Atmospheric member, and five governmental voting
Counties, as described in the Administration members. The council seats represent a
application. If approved, the grantee variety of regional interests and
would be able to serve sites throughout Availability of Seats for the Monitor
stakeholders, including: Citizen-at-
the service area based on companies’ National Marine Sanctuary Advisory
Large, Conservation, Economic
needs for FTZ designation. The Council
Development, Education, Heritage
proposed service area is within and AGENCY: Office of National Marine Tourism, Maritime Archaeological
adjacent to the Cincinnati Customs and Sanctuaries, National Ocean Service Research, Maritime Museums, The
Border Protection port of entry. (NOS), National Oceanic and Mariners’ Museum, Recreational/
The applicant is requesting authority Atmospheric Administration, Commercial Fishing, Recreational
to reorganize its existing zone project as Department of Commerce (DOC). Diving, the US Navy, Virginia and North
follows: remove Sites 1 and 2 due to ACTION: Notice and request for Carolina Department of Historic
changed circumstances and designate applications. Resources, the National Park Service,
Sites 3, 4 and 5 as ‘‘magnet’’ sites. The the US Coast Guard, and Youth. It is the
SUMMARY: The ONMS is seeking
ASF allows for the possible exemption combined expertise and experience of
of one magnet site from the ‘‘sunset’’ applicants for the following new seats
these individuals that creates an
on the Monitor National Marine
time limits that generally apply to sites advisory council that is a valuable and
Sanctuary advisory council (council):
under the ASF, and the applicant effective resource for the sanctuary
Recreational/Commercial Fishing seat,
proposes that Site 4 be so exempted. manager.
Recreational Dive seat, and an Economic
The applicant is also requesting The council’s objectives are to
Development seat.
approval of a ‘‘usage-driven’’ site in provide the sanctuary manager with
Applicants are also being sought to
Butler County: Proposed Site 6 (41 fill existing seats for the following advice on: (1) Protecting natural and
acres)—Liz Claiborne, Inc., 8471 vacant seats: Heritage Tourism seat, cultural resources, and identifying and
Jaquemin Drive, West Chester. Since the Citizen-at-Large seat, Recreational evaluating emergent or critical issues
ASF only pertains to establishing or Diving seat, Education seat, involving sanctuary use or resources; (2)
reorganizing a general-purpose zone, the Archaeological Research seat, Maritime identifying and realizing the sanctuary’s
application would have no impact on Museum seat, Youth seat, and research objectives; (3) identifying and
FTZ 46’s authorized subzones. Conservation seat. realizing educational opportunities to
In accordance with the Board’s Applicants are chosen based upon increase public knowledge and
regulations, Claudia Hausler of the FTZ their particular expertise and experience stewardship of the sanctuary
Staff is designated examiner to evaluate in relation to the seat for which they are environment; and 4) developing an
and analyze the facts and information applying; community and professional informed constituency to increase
presented in the application and case affiliations; philosophy regarding the awareness and understanding of the
record and to report findings and protection and management of marine
purpose and value of the sanctuary and
recommendations to the Board. resources; and possibly the length of
the National Marine Sanctuary System.
Public comment is invited from residence in the area affected by the
sanctuary. Applicants who are chosen The council may serve as a forum for
interested parties. Submissions (original consultation and deliberation among its
as members should expect to serve 2-
and 3 copies) shall be addressed to the
year terms, pursuant to the council’s members and as a source of advice to
Board’s Executive Secretary at the
Charter. the sanctuary manager regarding the
address below. The closing period for
DATES: Applications are due by July 15, management of the Monitor National
their receipt is August 2, 2010. Rebuttal
2010. Marine Sanctuary. The sanctuary
comments in response to material
submitted during the foregoing period advisory council holds open meetings to
ADDRESSES: Application kits may be
may be submitted during the subsequent ensure continued public input on
obtained from Shannon Rides, 100
15-day period to August 16, 2010. Museum Drive, Newport News, VA management issues and to increase
23606. Completed applications should public awareness and knowledge of the
A copy of the application will be sanctuary environment. Public
available for public inspection at the be sent to the same address.
participation at these meetings is
Office of the Executive Secretary, FOR FURTHER INFORMATION CONTACT:
welcomed and encouraged.
Foreign-Trade Zones Board, Room 2111, Shannon Ricles, 100 Museum Drive,
U.S. Department of Commerce, 1401 Newport News, VA 23606, 757–591– Authority: 16 U.S.C. 1431, et seq.
Constitution Avenue NW., Washington, 7328, Shannon.ricles@noaa.gov. (Federal Domestic Assistance Catalog
DC 20230–0002, and in the ‘‘Reading SUPPLEMENTARY INFORMATION: Number 11.429 Marine Sanctuary Program)
Room’’ section of the Board’s Web site, Established in 1975 as the Nation’s first Dated: April 23, 2010.
which is accessible via http:// marine sanctuary, the Monitor National
www.trade.gov/ftz. For further Marine Sanctuary is managed by Daniel J. Basta,
information, contact Claudia Hausler at NOAA’s Office of National Marine Director, Office of National Marine
Claudia.Hausler@trade.gov or (202) Sanctuaries. It is one of 13 sanctuaries Sanctuaries, National Ocean Service,
482–1379. and protects the wreck of the famed National Oceanic and Atmospheric
Civil War ironclad, USS Monitor, best Administration.
Dated: May 21, 2010. [FR Doc. 2010–13019 Filed 6–1–10; 8:45 am]
known for its battle with the
Andrew McGilvray,
Confederate ironclad, CSS Virginia in BILLING CODE 3510–NK–M
Executive Secretary. Hampton Roads, Va., on March 9, 1862.
[FR Doc. 2010–13203 Filed 6–1–10; 8:45 am] The advisory council consists of 18
BILLING CODE 3510–DS–P members and five alternates: 12 non-
DEPARTMENT OF COMMERCE Comments received, with the FOR FURTHER INFORMATION CONTACT:
exception of information marked Michael Murray, Channel Islands
International Trade Administration ‘‘business confidential,’’ will be National Marine Sanctuary, 113 Harbor
available for public inspection upon Way Suite 150 Santa Barbara, CA
Exemption of Foreign Air Carriers request. Information marked ‘‘business 93109–2315, 805–966–7107 extension
From Excise Taxes; Review of Finding confidential’’ shall be protected from 464, michael.murray@noaa.gov.
of Reciprocity (Ecuador), 26 U.S.C. disclosure to the full extent permitted SUPPLEMENTARY INFORMATION: The
4221 by law. Council was originally established in
AGENCY: International Trade It is suggested that those desiring December 1998 and has a broad
Administration, U.S. Department of additional information contact Mr. representation consisting of 21
Commerce. Eugene Alford, Office of Service members, including ten government
ACTION: Solicitation of public comments
Industries, U.S. Department of agency representatives and eleven
concerning a review of the existing Commerce, Washington, DC 20230, or members from the general public. The
exemption for aircraft registered in telephone 202–482–5071. Council functions in an advisory
Ecuador from certain internal revenue Dated: May 25, 2010. capacity to the Sanctuary
taxes on the purchase of supplies in the Joel D. Secundy, Superintendent. The Council works in
United States for such aircraft in Deputy Assistant Secretary for Services, concert with the Sanctuary
connection with their international Manufacturing and Services, International Superintendent by keeping him or her
commercial operations. Trade Administration. informed about issues of concern
[FR Doc. 2010–13223 Filed 6–1–10; 8:45 am] throughout the Sanctuary, offering
SUMMARY: Notice is hereby given that BILLING CODE 3510–DR–P recommendations on specific issues,
the Department of Commerce is and aiding the Superintendent in
conducting a review to determine, achieving the goals of the National
pursuant to Section 4221 of the Internal DEPARTMENT OF COMMERCE Marine Sanctuary Program. Specifically,
Revenue Code, as amended (26 U.S.C. the Council’s objectives are to provide
4221), whether the Government of National Oceanic and Atmospheric advice on: (1) Protecting natural and
Ecuador has discontinued allowing Administration cultural resources and identifying and
substantially reciprocal tax exemptions
Extension of Application Period for evaluating emergent or critical issues
to aircraft of U.S. registry in connection
Seats for the Channel Islands National involving Sanctuary use or resources;
with international commercial
Marine Sanctuary Advisory Council (2) identifying and realizing the
operations similar to those exemptions
Sanctuary’s research objectives; (3)
currently granted to aircraft of AGENCY: Office of National Marine identifying and realizing educational
Ecuadorian registry by the United States Sanctuaries (ONMS), National Ocean opportunities to increase the public
under the aforementioned statute. Service (NOS), National Oceanic and
The above-cited statute provides knowledge and stewardship of the
Atmospheric Administration (NOAA), Sanctuary environment; and (4)
exemptions for aircraft of foreign Department of Commerce (DOC).
registry from payment of certain internal assisting to develop an informed
ACTION: Notice of extension for constituency to increase awareness and
revenue taxes on the purchase of
supplies in the United States for such application period and request for understanding of the purpose and value
aircraft in connection with their applications. of the Sanctuary and the National
international commercial operations. Marine Sanctuary Program.
SUMMARY: The ONMS is extending the
These exemptions apply upon a finding deadline and seeking applications for Authority: 16 U.S.C. 1431, et seq.
by the Secretary of Commerce, or his the following vacant seats on the (Federal Domestic Assistance catalog Number
designee, and communicated to the Channel Islands National Marine 11.429 Marine sanctuary Program)
Department of the Treasury, that such Sanctuary Advisory Council: Dated: May 21, 2010.
country allows, or will allow, Commercial Fishing Alternate,
‘‘substantially reciprocal privileges’’ to Daniel J. Basta,
Education Alternate, Chumash Director, Office of National Marine
aircraft of U.S. registry with respect to Community Member and Alternate.
purchases of such supplies in that Sanctuaries, National Ocean Service,
Applicants are chosen based upon their National Oceanic and Atmospheric
country. If a foreign country particular expertise and experience in Administration.
discontinues the allowance of such relation to the seat for which they are [FR Doc. 2010–13100 Filed 6–1–10; 8:45 am]
substantially reciprocal exemption, the applying; community and professional BILLING CODE 3510–NK–M
exemption allowed by the United States affiliations; philosophy regarding the
will not apply after the Secretary of the protection and management of marine
Treasury is notified by the Secretary of resources; and possibly the length of DEPARTMENT OF COMMERCE
Commerce, or his designee, of the residence in the area affected by the
discontinuance. sanctuary. Applicants who are chosen Foreign-Trade Zones Board
Interested parties are invited to
as members should expect to serve two-
submit their views, comments and [Order No. 1682]
year terms, pursuant to the council’s
supporting documentation in writing
Charter. Grant of Authority For Subzone Status;
concerning this matter to Mr. Joel
Secundy, Deputy Assistant Secretary for DATES: Applications are due by June 30, Deere & Company (Agricultural
Services, U.S. Department of Commerce, 2010. Equipment and Component Parts);

Washington, DC 20230. Submissions ADDRESSES: Application kits may be Waterloo, IA
should be sent electronically to obtained at http:// Pursuant to its authority under the Foreign-
Airservices@ita.doc.gov. All www.channelislands.noaa.gov/sac/ Trade Zones Act of June 18, 1934, as
submissions should be received no later news.html. Completed applications amended (19 U.S.C. 81a–81u), the Foreign-
than thirty days from the date of this should be sent to Trade Zones Board (the Board) adopts the
notice. Danielle.lipski@noaa.gov. following Order:
Whereas, the Foreign-Trade Zones Act DEPARTMENT OF COMMERCE Signed at Washington, DC, this 21st day of
provides for ‘‘ * * * the establishment May 2010.
* * * of foreign-trade zones in ports of Foreign-Trade Zones Board Ronald K. Lorentzen,
entry of the United States, to expedite Deputy Assistant Secretary for Import
and encourage foreign commerce, and [Order No. 1681] Administration, Alternate Chairman, Foreign-
for other purposes,’’ and authorizes the Trade Zones Board.
Grant of Authority for Subzone Status; Andrew McGilvray,
Foreign-Trade Zones Board to grant to South Florida Materials Corporation
qualified corporations the privilege of Executive Secretary.
(Distribution of Petroleum Products);
establishing foreign-trade zones in or Port Everglades, FL [FR Doc. 2010–13210 Filed 6–1–10; 8:45 am]
adjacent to U.S. Customs and Border BILLING CODE 3510–DS–P
Protection ports of entry; Pursuant to its authority under the Foreign-
Trade Zones Act of June 18, 1934, as
Whereas, the Board’s regulations (15 amended (19 U.S.C. 81a–81u), the Foreign- DEPARTMENT OF COMMERCE
CFR part 400) provide for the Trade Zones Board (the Board) adopts the
establishment of special-purpose following Order: International Trade Administration
subzones when existing zone facilities Whereas, the Foreign-Trade Zones Act
cannot serve the specific use involved, provides for ‘‘* * * the establishment Initiation of Five-Year (‘‘Sunset’’)
and when the activity results in a * * * of foreign-trade zones in ports of Review
significant public benefit and is in the entry of the United States, to expedite
public interest; AGENCY: Import Administration,
and encourage foreign commerce, and
International Trade Administration,
Whereas, the Cedar Rapids Airport for other purposes,’’ and authorizes the
Department of Commerce.
Commission, grantee of FTZ 175, has Foreign-Trade Zones Board to grant to
made application to the Board for qualified corporations the privilege of SUMMARY: In accordance with section
authority to establish special-purpose establishing foreign-trade zones in or 751(c) of the Tariff Act of 1930, as
subzone status with manufacturing adjacent to U.S. Customs and Border amended (‘‘the Act’’), the Department of
authority at the Deere & Company Protection ports of entry; Commerce (‘‘the Department’’) is
facilities, located in Waterloo, Iowa Whereas, the Board’s regulations (15 automatically initiating a five-year
(FTZ Docket 50–2009, filed 11/12/2009); CFR part 400) provide for the review (‘‘Sunset Review’’) of the
establishment of special-purpose antidumping and countervailing duty
Whereas, notice inviting public subzones when existing zone facilities orders listed below. The International
comment has been given in the Federal cannot serve the specific use involved, Trade Commission (‘‘the Commission’’)
Register (74 FR 59524, 11/18/2009) and and when the activity results in a is publishing concurrently with this
the application has been processed significant public benefit and is in the notice its notice of Institution of Five-
pursuant to the FTZ Act and the Board’s public interest; Year Review which covers the same
regulations; and, Whereas, Broward County, Florida, orders.
Whereas, the Board adopts the grantee of Foreign-Trade Zone 25, has
made application to the Board for DATES: Effective Date: June 1, 2010.
findings and recommendations of the
examiner’s report, and finds that the authority to establish a special-purpose FOR FURTHER INFORMATION CONTACT: The
requirements of the FTZ Act and subzone at the petroleum product Department official identified in the
Board’s regulations are satisfied, and storage and distribution facility of South Initiation of Review section below at
that the proposal is in the public Florida Materials Corporation (d/b/a AD/CVD Operations, Import
Vencenergy), located in Port Everglades, Administration, International Trade
interest;
Florida, (FTZ Docket 44–2009, filed 10/ Administration, U.S. Department of
Now, therefore, the Board hereby 22/2009); Commerce, 14th Street & Constitution
grants authority for subzone status for Whereas, notice inviting public Ave., NW., Washington, DC 20230. For
activity related to the manufacturing comment has been given in the Federal information from the Commission
and distribution of agricultural Register (74 FR 55812–55813, 10/29/ contact Mary Messer, Office of
equipment at the facilities of Deere & 2009) and the application has been Investigations, U.S. International Trade
Company, located in Waterloo, Iowa processed pursuant to the FTZ Act and Commission at (202) 205–3193.
(Subzone 175A), as described in the the Board’s regulations; and,
application and Federal Register notice, Whereas, the Board adopts the SUPPLEMENTARY INFORMATION:
subject to the FTZ Act and the Board’s findings and recommendations of the Background
regulations, including Section 400.28. examiner’s report, and finds that the
requirements of the FTZ Act and The Department’s procedures for the
Signed at Washington, DC, this 21st day of
Board’s regulations are satisfied, and conduct of Sunset Reviews are set forth
May, 2010.
that the proposal is in the public in its Procedures for Conducting Five-
Ronald K. Lorentzen, interest; Year (‘‘Sunset’’) Reviews of Antidumping
Deputy Assistant Secretary for Import Now, therefore, the Board hereby and Countervailing Duty Orders, 63 FR
Administration, Alternate Chairman, Foreign- grants authority for subzone status for 13516 (March 20, 1998) and 70 FR
Trade Zones Board. activity related to petroleum product 62061 (October 28, 2005). Guidance on
Andrew McGilvray, storage and distribution at the facility of methodological or analytical issues
Executive Secretary. South Florida Materials Corporation relevant to the Department’s conduct of
[FR Doc. 2010–13214 Filed 6–1–10; 8:45 am] (d/b/a Vencenergy), located in Port Sunset Reviews is set forth in the
BILLING CODE 3510–DS–P
Everglades (Subzone 25F), as described Department’s Policy Bulletin 98.3—
in the application and Federal Register Policies Regarding the Conduct of Five-
notice, subject to the FTZ Act and the Year (‘‘Sunset’’) Reviews of Antidumping
Board’s regulations, including Section and Countervailing Duty Orders: Policy
400.28. Bulletin, 63 FR 18871 (April 16, 1998).
Initiation of Review Review of the following antidumping

In accordance with 19 CFR and countervailing duty orders:
351.218(c), we are initiating the Sunset
Department
DOC Case No. ITC Case No. Country Product contact
A–405–803 ........ 731–TA–1084 ... Finland .................... Carboxymethyl-cellulose ......................... Dana Mermelstein (202) 482–1391.
A–201–834 ........ 731–TA–1085 ... Mexico .................... Carboxymethyl-cellulose ......................... Dana Mermelstein (202) 482–1391.
A–421–811 ........ 731–TA–1086 ... Netherlands ............ Carboxymethyl-cellulose ......................... Dana Mermelstein (202) 482–1391.
A–405–803 ........ 731–TA–1087 ... Sweden .................. Carboxymethyl-cellulose ......................... Dana Mermelstein (202) 482–1391.
A–423–808 ........ 731–TA–788 ..... Belgium .................. Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
A–475–822 ........ 731–TA–790 ..... Italy ......................... Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
A–580–831 ........ 731–TA–791 ..... Korea ...................... Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
A–791–805 ........ 731–TA–792 ..... South Africa ............ Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
A–583–830 ........ 731–TA–783 ..... Taiwan .................... Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–1391.
view).
A–428–825 ........ 731–TA–798 ..... Germany ................. Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
A–475–824 ........ 731–TA–799 ..... Italy ......................... Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
A–588–845 ........ 731–TA–800 ..... Japan ...................... Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
A–580–834 ........ 731–TA–801 ..... Korea ...................... Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
A–201–822 ........ 731–TA–802 ..... Mexico .................... Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
A–583–831 ........ 731–TA–803 ..... Taiwan .................... Stainless Steel Sheet and Strip in Coils Dana Mermelstein (202) 482–1391.
(2nd Review).
C–423–809 ....... 701–TA–376 ..... Belgium .................. Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
C–791–806 ....... 701–TA–379 ..... South Africa ............ Stainless Steel Plate in Coils (2nd Re- Brandon Farlander (202) 482–0182.
view).
C–580–835 ....... 701–TA–382 ..... Korea ...................... Stainless Steel Sheet and Strip in Coils Brandon Farlander (202) 482–0182.
(2nd Review).
Filing Information parties to apply for access to proprietary party by the 15-day deadline, the
As a courtesy, we are making information under administrative Department will automatically revoke
information related to Sunset protective order (‘‘APO’’) immediately the order without further review. See 19
proceedings, including copies of the following publication in the Federal CFR 351.218(d)(1)(iii).
pertinent statute and Department’s Register of this notice of initiation by If we receive an order-specific notice
regulations, the Department schedule filing a notice of intent to participate. of intent to participate from a domestic
for Sunset Reviews, a listing of past The Department’s regulations on interested party, the Department’s
revocations and continuations, and submission of proprietary information regulations provide that all parties
current service lists, available to the and eligibility to receive access to wishing to participate in the Sunset
public on the Department’s Internet business proprietary information under Review must file complete substantive
Web site at the following address: APO can be found at 19 CFR 351.304– responses not later than 30 days after
http://ia.ita.doc.gov/sunset/. All 306. the date of publication in the Federal
submissions in these Sunset Reviews Information Required From Interested Register of this notice of initiation. The
must be filed in accordance with the Parties required contents of a substantive
Department’s regulations regarding response, on an order-specific basis, are
format, translation, service, and Domestic interested parties defined in set forth at 19 CFR 351.218(d)(3). Note
certification of documents. These rules section 771(9)(C), (D), (E), (F), and (G) of that certain information requirements
can be found at 19 CFR 351.303. the Act and 19 CFR 351.102(b) wishing differ for respondent and domestic
Pursuant to 19 CFR 351.103(d), the to participate in a Sunset Review must parties. Also, note that the Department’s
Department will maintain and make respond not later than 15 days after the information requirements are distinct
available a service list for these date of publication in the Federal from the Commission’s information
proceedings. To facilitate the timely Register of this notice of initiation by requirements. Please consult the
preparation of the service list(s), it is filing a notice of intent to participate. Department’s regulations for
requested that those seeking recognition See 19 CFR 351.218(d)(1)(i). The information regarding the Department’s
as interested parties to a proceeding required contents of the notice of intent conduct of Sunset Reviews.1 Please
contact the Department in writing to participate are set forth at 19 CFR
1 In comments made on the interim final sunset
within 10 days of the publication of the 351.218(d)(1)(ii). In accordance with the
regulations, a number of parties stated that the
Notice of Initiation. Department’s regulations, if we do not proposed five-day period for rebuttals to
Because deadlines in Sunset Reviews receive a notice of intent to participate substantive responses to a notice of initiation was
can be very short, we urge interested from at least one domestic interested insufficient. This requirement was retained in the
consult the Department’s regulations at Abstract: Methods of detecting the DEPARTMENT OF COMMERCE
19 CFR part 351 for definitions of terms presence of toxins in a sample using
and for other general information electrophoretic separations and of National Oceanic and Atmospheric
concerning antidumping and performing electrophoretic separation of Administration
countervailing duty proceedings at the complex samples are provided. The RIN 0648–XW62
Department. method of detecting the presence of
This notice of initiation is being toxins includes reacting a sample and a Fisheries of the Exclusive Economic
published in accordance with section substrate with a signaling enzyme Zone off Alaska; Stock Assessment of
751(c) of the Act and 19 CFR 351.218 which converts the substrate to the Eastern Bering Sea Pollock; Peer
(c). product in a reaction medium, Review Meeting
John M. Andersen, introducing a run buffer into a AGENCY: National Marine Fisheries
Acting Deputy Assistant Secretary for separation channel having an inlet end, Service (NMFS), National Oceanic and
Antidumping and Countervailing Duty selectively introducing at least one of Atmospheric Administration (NOAA),
Operations. the substrate and the product of the Commerce.
[FR Doc. 2010–13058 Filed 6–1–10; 8:45 am] reaction medium into the inlet end of ACTION: Notice of a public meeting.
BILLING CODE 3510–DS–P the separation channel,
electrophoretically separating the SUMMARY: NMFS has requested the
substrate and the product, and Center for Independent Experts (CIE) to
DEPARTMENT OF COMMERCE determining the rate of conversion of conduct a peer review of the agency’s
the substrate to the product, wherein a stock assessment of Eastern Bering Sea
National Institute of Standards and walleye pollock (Theragra
Technology change in the rate of conversion is
indicative of the presence of toxins. The chalcogramma). The CIE, operated by
Notice of Jointly Owned Invention method of performing electrophoretic Northern Taiga Ventures, Inc., provides
independent peer reviews of NMFS’s
Available for Licensing separations of complex samples having
fisheries stock assessments. The Eastern
charged particulates and oppositely
AGENCY: National Institute of Standards Bering Sea pollock stock assessment is
and Technology, Commerce. charged analytes comprises introducing
reviewed annually by the Alaska
a run buffer into a separation channel Fisheries Science Center, the North
ACTION: Notice of jointly owned
having an inlet end, selectively Pacific Fishery Management Council
invention available for licensing.
introducing the oppositely charged (NPFMC) Plan Team, and the NPFMC
SUMMARY: The invention listed below is analytes in the complex sample into the Scientific and Statistical Committee.
jointly owned by the U.S. Government, separation channel, and The CIE review will examine whether
as represented by the Department of electrophoretically separating the the assessment incorporates the best
Commerce, and by Applied Research charged particulates and the oppositely available scientific information and
Associates, Inc. The Department of charged analytes. Additionally, a device provides a reasonable approach to
Commerce’s interest in the invention is for varying with respect to time the bulk understanding the population dynamics
available for licensing in accordance flow of a fluid in a separation channel and stock status of Eastern Bering Sea
with 35 U.S.C. 207 and 37 CFR part 404 of an electrophoretic device having a pollock. The public is invited to attend
to achieve expeditious buffer reservoir in fluid contact with the and observe the presentations and
commercialization of results of federally separation channel is provided. The discussions between the CIE panel and
funded research and development. device includes a pressure sensor in the NMFS scientists who collected and
FOR FURTHER INFORMATION CONTACT: fluid contact with a buffer reservoir, a processed the data, and designed the
Technical and licensing information on high pressure reservoir in selective underlying model.
this invention may be obtained by fluidic communication with the buffer DATES: The public meeting will be held
writing to: National Institute of reservoir, a low pressure reservoir in from June 28 through July 2, 2010, 9
Standards and Technology, Office of a.m. to 5 p.m. Pacific Standard Time.
selective fluidic communication with
Technology Partnerships, Building 222, ADDRESSES: The review will be held at
the buffer reservoir and in fluidic
Room A242, Gaithersburg, MD 20899. the NMFS Alaska Fisheries Science
communication with the high pressure
Information is also available via Center, 7600 Sand Point Way N.E.,
telephone: 301–975–2649, fax 301–975– reservoir, and a pumping device for
pumping a gas from the low pressure Building 4, Seattle, WA 98115. Photo
3482, or e-mail: nathalie.rioux@nist.gov. identification is required to enter this
Any request for information should reservoir to the high pressure reservoir.
facility.
include the NIST Docket number or Dated: May 25, 2010.
Patent number and title for the FOR FURTHER INFORMATION CONTACT:
Katharine B. Gebbie,
invention as indicated below. James Ianelli, 206–526–6510.
Director, Physics Laboratory.
The invention available for licensing SUPPLEMENTARY INFORMATION: The CIE
[FR Doc. 2010–13200 Filed 6–1–10; 8:45 am]
is: panel will consist of three peer
BILLING CODE 3510–13–P reviewers who will assess materials
[NIST DOCKET NUMBER: 10–004]
related to the topic, participate in a
Title: Gradient Elution Moving review workshop with the NMFS
Boundary Electrophoresis for the scientists who developed the model and
Analysis of Complex Samples and the analytical approach, and produce a

Detection of Toxins. report. This review will be highly
technical in nature and will cover
final sunset regulations at 19 CFR 351.218(d)(4). As mathematical details of the analytical
provided in 19 CFR 351.302(b), however, the
Department will consider individual requests to
approach. More information about the
extend that five-day deadline based upon a showing CIE is available on its website at
of good cause. www.ciereviews.org.
Members of the public are invited to National Conference on Weights and Committee agendas, but does not
observe, and will be provided Measures’’ at http://www.ncwm.net or include all agenda items. As a result, the
opportunities to contribute on June 28 http://www.nist.gov/owm to review the following items are not consecutively
and July 2, 2010. The final report will full meeting agenda, registrations forms, numbered.
be available prior to the September and hotel reservation information.
NCWM Specifications and Tolerances
NPFMC Plan Team meetings and will SUPPLEMENTARY INFORMATION: The
consist of individual reports from each Committee
NCWM is a voluntary organization of
panelist and a summary report. The weights and measures officials of the The following items are proposals to
results of the review will be presented states, counties, and cities of the United amend NIST Handbook 44:
during the September 2010 NPFMC Plan States, Federal agencies, and private
Team meeting, which will be General Code
sector representatives. These meetings
announced at a later time in the Federal bring together government officials and Item 310–4. G–A.6. Nonretroactive
Register. representatives of business, industry, Requirements (Remanufactured
Special Accommodations trade associations, and consumer Equipment)—The NCWM will consider
organizations on subjects related to the adoption of a revision to a current
These workshops will be physically requirement to clarify the intent of the
field of weights and measures
accessible to people with disabilities. 2001 decision regarding the application
technology, administration, and
Requests for sign language of a variety of nonretroactive
enforcement. NIST participates in the
interpretation or other auxiliary aids requirements to devices that have been
NCWM to promote uniformity among
should be directed to Pat Livingston, classified to have been
the states in laws, regulations, methods,
206–526–4172, at least 10 working days ‘‘remanufactured’’ (i.e., a device that is
and testing equipment that comprise the
prior to the meeting date. disassembled, checked for wear, parts
regulatory control of commercial
Dated: May 26, 2010. weighing and measuring devices and replaced or fixed, reassembled and
Carrie Selberg, other practices used in trade and made to operate like a new device of the
Acting Director, Office of Sustainable commerce. same type) as compared with a
Fisheries, National Marine Fisheries Service. The following are brief descriptions of ‘‘manufactured device’’ which is a
[FR Doc. 2010–13222 Filed 6–1–10; 8:45 am] some of the significant agenda items commercial weighing or measuring
BILLING CODE 3510–22–S that will be considered along with other device shipped as new from the original
issues at the NCWM Annual Meeting. equipment manufacturer.
Comments will be taken on these and Scales Code
DEPARTMENT OF COMMERCE other issues during several public
comment sessions. At this stage, the Item 320–2. S.1.7. Automatic Zero-
National Institute of Standards and items are proposals. This meeting also Setting Mechanism (AZSM)—The
Technology includes work sessions in which the NCWM will consider adoption of a
National Conference on Weights and Committees may also accept oral and proposal to define the acceptable
Measures 95th Annual Meeting written comments where they will operating parameters of the zero-setting
finalize recommendations for NCWM functions used on some electronic
AGENCY: National Institute of Standards consideration and possible adoption at weighing devices. These functions
and Technology, Commerce. its voting sessions which are tentatively automatically maintain a scale’s
ACTION: Notice. scheduled for July 14 and 15, 2010. The indications at zero when no load is on
Committees may withdraw or carry over the device. Existing NIST Handbook 44
SUMMARY: The Annual Meetings of the items that need additional development. requirements prohibit some of the zero-
95th National Conference on Weights The Specifications and Tolerances setting functions found on weighing
and Measures (NCWM) will be held July Committee (S&T Committee) will devices designed and sold for use in
11 to 15, 2010. Publication of this notice consider proposed amendments to NIST other countries when those devices are
on the NCWM’s behalf is undertaken as Handbook 44, ‘‘Specifications, used in commercial applications in the
a public service; NIST does not endorse, Tolerances, and other Technical U.S. marketplace. The intent of the
approve, or recommend any of the Requirements for Weighing and proposal is to retroactively prohibit the
proposals contained in this notice or in Measuring Devices (NIST Handbook use of this feature on scales used in
the publications of the NCWM 44).’’ Those items address weighing and commercial transactions.
mentioned below. The meetings of the measuring devices used in commercial
NCWM are open to the public but Vehicle Tank Meter Code
applications, that is, devices that are
registration is required. normally used to buy from or sell to the Item 331–1. T.2.1. Automatic
DATES: The meeting will be held on July public or used for determining the Temperature-Compensating Systems
11–15, 2010. quantity of product sold among (ATC) on Vehicle Tank Meters (These
ADDRESSES: The meeting will be held at businesses. systems may be used on existing vehicle
the Crowne Plaza St. Paul-Riverfront Issues on the agenda of the NCWM mounted meters that are typically used
Hotel, 11 East Kellogg Boulevard, St. Laws and Regulations Committee (L&R to deliver home heating fuel and other
Paul, Minnesota 55101. Committee) relate to proposals to amend products to residential and business
FOR FURTHER INFORMATION CONTACT: NIST Handbook 130, ‘‘Uniform Laws consumers.)—The NCWM will consider
Carol Hockert, Chief, NIST, Weights and and Regulations in the area of legal adoption of the proposal to revise the
Measures Division, 100 Bureau Drive, metrology and engine fuel quality’’ and existing tolerances applicable to
Stop 2600, Gaithersburg, MD 20899– NIST Handbook 133 ‘‘Checking the Net comparisons of test results between
2600 or by telephone (301) 975–5507 or Contents of Packaged Goods.’’ These compensated and non-compensated test
at Carol.Hockert@nist.gov by e-mail. documents are available on the Internet runs on vehicle tank meters equipped
Registration is required to attend this at http://www.nist.gov/owm. with ATC systems to better reflect the
meeting. Please see NCWM Pub 16 This notice contains information actual performance capability of these
‘‘Committee Reports for the 95th about significant items on the NCWM systems.
Commercial Hydrogen Gas Measuring Committee requests that manufacturers Dated: May 26, 2010.
Devices and sellers of these products, Katharine B. Gebbie,
Item 360–1. Tentative Code for consumers, and weights and measures Director, Physics Laboratory.
Hydrogen Gas-Measuring Devices—The officials provide comments on the draft [FR Doc. 2010–13198 Filed 6–1–10; 8:45 am]
NCWM will consider adoption of a set regulation which is presented in BILLING CODE 3510–13–P
of specifications, tolerances, and other Publication 16.
technical requirements as a ‘‘tentative’’ Item 232–6. Method of Sale, Section
code for inclusion in NIST Handbook 44 2.23. Animal Bedding—The NCWM will DEPARTMENT OF COMMERCE
that can be applied on a trial basis to consider adoption of a proposal to
International Trade Administration
commercial measuring equipment used amend the current method of sale (i.e.,
to deliver hydrogen fuel to highway a regulation that specifies whether a Manufacturing Council
vehicles, which are currently operating product may be sold by weight,
in 24 states. The code was developed by measure, count, or a combination of the AGENCY: International Trade
the U.S. National Working Group three methods to facilitate value Administration, U.S. Department of
(USNWG) for the Development of comparisons by consumers) to Commerce.
Commercial Hydrogen Measurement accommodate the special needs and ACTION: Notice of Reopening of the
Standards that included key provisions of granular, pelleted, and Application Period for Membership on
stakeholders and experts in commercial other non-compressible dry laboratory the Manufacturing Council.
hydrogen measurement, such as animal bedding materials sold to
manufacturers and users of commercial commercial end-users in the specialized SUMMARY: On March 16, 2010, the
hydrogen measuring equipment, fuel lab animal research industry on a Department of Commerce’s International
suppliers, regulatory officials, and other weight or per pound basis. Trade Administration published a
interested parties. Adoption and use of notice in the Federal Register (75 FR
The following items are proposals to 12507) soliciting applications for
the code on a trial basis is expected to amend NIST Handbook 133 ‘‘Checking
provide feedback to the USNWG on how membership on the Manufacturing
the Net Contents of Packaged Goods’’: Council (Council). The March 16, 2010
well the draft meets the needs of the
measurement community in a broad Item 260–1. Guidance on Allowing for notice provided that all applications
range of applications. The proposed Moisture Loss and Other Revisions— must be received by the Office of
tolerances are based on an assessment of The NCWM will consider adoption of Advisory Committees of the Department
the range of accuracy levels reported proposed revisions to the procedures of Commerce by close of business on
thus far, but require additional that handbook users may use to provide April 15, 2010. This notice reopens the
evaluation. The appropriateness of the for moisture loss in packaged goods. application period in order to provide
tolerance values will be determined in Other proposals to amend the handbook the public with an additional
conjunction with the evaluation of the include revisions of current language, opportunity to submit applications. The
other requirements contained in this including additional instructions in eligibility and evaluation criteria for
tentative code. Based on the feedback some test procedures, to increase clarity selecting members contained in the
received from its use as a tentative code, and uniformity. Further discussion of March 16, 2010 notice shall continue to
if needed additional changes, will be the draft revision of the handbook is apply. The purpose of the Council is to
included in the code prior to it being presented in Publication 16. advise the Secretary of Commerce on
recommended for adoption as a Item 260–2. Seed Count for matters relating to the competitiveness
‘‘permanent’’ (or fully enforceable) code Agricultural Seeds—The NCWM will of the U.S. manufacturing sector and to
in NIST Handbook 44. consider adoption of test procedures for provide a forum for regular
determining actual seed count in communication between Government
NCWM Laws and Regulations and the manufacturing sector.
Committee packages, which may be labeled to
contain up to 80,000 seeds, and limits ADDRESSES: Please submit application
The following items are proposals to on unreasonable quantity variations for information to J. Marc Chittum, Office of
amend NIST Handbook 130: addition to the handbook. These Advisory Committees, Manufacturing
Method of Sale of Commodities proposals were developed by seed Council Executive Secretariat, U.S.
Regulation regulatory officials in collaboration with Department of Commerce, Room 4043,
industry for use in verifying the net 1401 Constitution Avenue, NW.,
Item 232–2. Method of Sale and Washington, DC 20230.
quantity of contents of packages of
Engine Fuel Quality Requirements for DATES: All applications must be
agricultural seed (specifically corn seed,
Hydrogen—The NCWM will consider received by the Office of Advisory
soybean seed, field bean seed, and
adoption of a proposal to establish a Committees by close of business on June
uniform method of sale for hydrogen wheat seed) labeled by ‘‘count.’’
18, 2010.
offered for retail sale as a vehicle fuel. Item 260–6. Moisture Allowance for
Pasta Products—The NCWM will FOR FURTHER INFORMATION CONTACT: J.
Item 232–5. Uniform Regulation for
Method of Sale of Commodities— consider adoption of a proposal for a Marc Chittum, Manufacturing Council
Packaged Printer Ink and Toner three percent limit on moisture loss for Executive Secretariat, Room 4043, 1401
Cartridges—This is an informational macaroni, noodle, and like products Constitution Avenue, NW., Washington,
item and it will not be voted on at the (pasta products). If this proposal is DC 20230, telephone: 202–482–4501, e-
2010 Annual Meeting. The L&R adopted, the specified value would be mail: marc.chittum@trade.gov.
Committee will accept comments on used by weights and measures officials Please visit the Manufacturing
this item and then consider to enforce laws related to the accuracy Council Web site at: http://
recommending adoption of a method of of net quantity of contents declaration www.manufacturing.gov/council/
sale to clarify the net quantity of on packaged goods and to define index.asp?dName=council.
contents and other labeling reasonable variations caused by the loss SUPPLEMENTARY INFORMATION: The Office
requirements for these products. The or gain of moisture. of Advisory Committees is reopening
the application period for the Council’s manufacturing sector. For the purposes compliance with the criteria set forth
current two year charter term to expire of eligibility, a U.S. entity shall be above.
April 10, 2012. Although the defined as a firm incorporated in the 7. The entity’s size and ownership,
Department of Commerce has received United States (or an unincorporated product or service line and major
many applications and is still firm with its principal place of business markets in which the entity operates.
considering all applications received to in the United States) that is controlled 8. Please include all relevant contact
date (including any applications by U.S. citizens or by another U.S. information such as mailing address,
received after the prior deadline but entity. An entity is not a U.S. entity if fax, e-mail, fixed and mobile phone
before issuance of this notice), the 50 percent plus one share of its stock (if numbers and support staff information
Department is seeking a broader a corporation, or a similar ownership where relevant.
applicant pool more representative of interest of an unincorporated entity) is Appointments of members to the
the U.S. manufacturing industry as a controlled, directly or indirectly, by Council will be made by the Secretary
whole. By reopening and extending the non-U.S. citizens or non-U.S. entities. of Commerce.
application period, the Department also Appointments to the Council will be Dated: May 27, 2010.
hopes to have a broader applicant pool made by the Secretary of Commerce.
J. Marc Chittum,
to reflect the full diversity of the U.S. Council members will serve at the
Executive Secretary, Manufacturing Council.
manufacturing industry in terms of discretion of the Secretary of Commerce.
Council members shall serve in a [FR Doc. 2010–13255 Filed 6–1–10; 8:45 am]
industry sectors, geographic locations,
demographics, and company size. The representative capacity, representing the BILLING CODE 3510–DR–P
criteria and procedures for selecting views and interests of their particular
members contained in the March 16, industry sector. Council members are
not special government employees. DEPARTMENT OF COMMERCE
2010 notice continue to apply and are
republished herein for convenience. Council members will receive no
Foreign-Trade Zones Board
Pending applicants remain under compensation for their participation in
consideration and do not need to Council activities. Members [Order No. 1683]
resubmit their applications. Members participating in Council meetings and
are appointed for a two-year term to events will be responsible for their Reorganization/Expansion of Foreign-
serve until the Council’s charter expires travel, living and other personal Trade Zone 20; Hampton Roads, VA,
on April 10, 2012. Members will be expenses. Area
selected in accordance with applicable Meetings will be held regularly and Pursuant to its authority under the Foreign-
Department of Commerce guidelines not less than annually, usually in Trade Zones Act of June 18, 1934, as
based on their ability to advise the Washington, DC. Members are required amended (19 U.S.C. 81a-81u), the Foreign-
Secretary of Commerce on matters to attend a majority of the Council Trade Zones Board (the Board) adopts the
relating to the U.S. manufacturing meetings. The first Council meeting for following Order:
sector, to act as a liaison among the the new charter term has not yet been Whereas, the Virginia Port Authority,
stakeholders represented by the set. grantee of Foreign-Trade Zone 20,
membership and to provide a forum for To be considered for membership,
submitted an application to the Board
those stakeholders on current and please provide the following:
1. Name and title of the individual for authority to reorganize and expand
emerging issues in the manufacturing its zone to modify and expand Site 3, to
sector. The Council’s membership shall requesting consideration.
2. A sponsor letter from the applicant remove acreage from Site 8, to modify
reflect the diversity of American Site 9, and to add six new sites
on organization letterhead or, if the
manufacturing by representing a (proposed Sites 19–24) in the Hampton
applicant is to represent an entity other
balanced cross-section of the U.S. Roads, Virginia, area within the Norfolk
than his or her employer, a letter from
manufacturing industry in terms of Customs and Border Protection port of
the entity to be represented, containing
industry sectors, geographic locations, entry (FTZ Docket 19–2009, filed 4/28/
a brief statement of why the applicant
demographics, and company size, 09);
should be considered for membership
particularly seeking the representation Whereas, notice inviting public
on the Council. This sponsor letter
of small- and medium-sized enterprises. comment was given in the Federal
should also address the applicant’s
Additional factors which may be Register (74 FR 20927, 5/6/09) and the
manufacturing-related experience,
considered in the selection of Council application has been processed
including any manufacturing trade
members include candidates’ proven pursuant to the FTZ Act and the Board’s
policy experience.
experience in developing and marketing 3. The applicant’s personal résumé. regulations; and,
programs in support of manufacturing 4. An affirmative statement that the Whereas, the Board adopts the
industries, job creation in the applicant is not required to register as findings and recommendations of the
manufacturing sector, or the candidates’ a foreign agent under the Foreign Agents examiner’s report, and finds that the
proven abilities to manage Registration Act of 1938, as amended. requirements of the FTZ Act and
manufacturing organizations. Given the 5. An affirmative statement that the Board’s regulations are satisfied, and
duties and objectives of the Council, the applicant is not a federally registered that the proposal, with respect to Sites
Department particularly seeks lobbyist, and that the applicant 3, 8 and 9 and Sites 19, 21, 22, 23 and
applicants who are active understands that if appointed, the 24, is in the public interest;
manufacturing executives (Chief applicant will not be allowed to Now, therefore, the Board hereby
Executive Officer, President, and a continue to serve as a Council member orders:

comparable level of responsibility) that if the applicant becomes a federally The application to reorganize and
are leaders within their local registered lobbyist. expand FTZ 20 is approved in part
manufacturing communities and 6. Information regarding the control of (with respect to Sites 3, 8 and 9 and
industries. the entity to be represented, including Sites 19, 21, 22, 23 and 24), subject to
Each Council member shall serve as the governing structure and stock the FTZ Act and the Board’s regulations,
the representative of a U.S. entity in the holdings as appropriate signifying including Section 400.28, to the Board’s
standard 2,000-acre activation limit for advisory committee terminate on an the burden estimates for the marking
the overall general-purpose zone earlier date. and instructional literature
project, and to sunset provisions that The purpose of the Technology requirements in the Safety Standard for
would terminate authority on May 31, Advisory Committee is to conduct Infant Bath Seats.
2013, for existing Sites 1–18 and 25 public meetings, to submit reports and DATES: Submit written or electronic
(including the additions to Sites 3 and recommendations to the Commission, comments on the collection of
9) and on May 31, 2015, for Sites 19, 21, and to otherwise assist the Commission information by August 2, 2010.
22, 23 and 24 where no activity has in identifying and understanding how ADDRESSES: You may submit comments,
occurred under FTZ procedures before new developments in technology are identified by Docket No. CPSC–2009–
those dates. being applied and utilized in the 0064, by any of the following methods:
Signed at Washington, DC, this 21st day of industry, and their impact on the
operation of the markets. The committee Electronic Submissions
May, 2010.
Ronald K. Lorentzen, will allow the Commission to be an Submit electronic comments in the
active participant in market innovation, following way:
Deputy Assistant Secretary for Import
Administration, Alternate Chairman, Foreign- explore the appropriate investment in Federal eRulemaking Portal: http://
Trade Zones Board. technology, and advise the Commission www.regulations.gov. Follow the
Andrew McGilvray, on the need for strategies to implement instructions for submitting comments.
rules and regulations to support the To ensure timely processing of
Executive Secretary.
Commission’s mission of ensuring the comments, the Commission is no longer
[FR Doc. 2010–13206 Filed 6–1–10; 8:45 am]
integrity of the markets. Meetings of the accepting comments submitted by
BILLING CODE 3510–DS–P
Technology Advisory Committee are electronic mail (e-mail) except through
public. http://www.regulations.gov.
The Technology Advisory Committee
COMMODITY FUTURES TRADING Written Submissions
may be reestablished 15 days after
COMMISSION publication of this notice by filing a Submit written submissions in the
reestablishment charter with the following way:
Reestablishment of the Technology Commission; the Senate Committee on Mail/Hand delivery/Courier (for
Advisory Committee Agriculture, Nutrition and Forestry; the paper, disk, or CD–ROM submissions),
AGENCY: Commodity Futures Trading House Committee on Agriculture; the preferably in five copies, to: Office of
Commission. Library of Congress; and the General the Secretary, Consumer Product Safety
Services Administration’s Committee Commission, Room 502, 4330 East West
ACTION: Notice of Federal Advisory
Management Secretariat. A copy of the Highway, Bethesda, MD 20814;
Committee Reestablishment.
reestablishment charter also will be telephone (301) 504–7923.
SUMMARY: The Commodity Futures posted on the Commission’s Web site at Instructions: All submissions received
Trading Commission has determined to http://www.cftc.gov. must include the agency name and
reestablish the charter of its Technology docket number for this notice. All
Issued in Washington, DC, on May 19,
Advisory Committee. comments received may be posted
2010, by the Commission.
without change, including any personal
David A. Stawick,
Martin B. White, Committee identifiers, contact information, or other
Secretary of the Commission. personal information provided, to
Management Officer, at 202–418–5129. [FR Doc. 2010–13184 Filed 6–1–10; 8:45 am]
Written comments should be submitted http://www.regulations.gov. Do not
to David A. Stawick, Secretary,
BILLING CODE P submit confidential business
Commodity Futures Trading information, trade secret information, or
Commission, Three Lafayette Centre, other sensitive or protected information
CONSUMER PRODUCT SAFETY electronically. Such information should
1155 21st Street, NW., Washington, DC
COMMISSION be submitted in writing.
20581. Electronic comments may be
Docket: For access to the docket to
submitted to shumenik@cftc.gov. [Docket No. CPSC–2009–0064]
read background documents or
SUPPLEMENTARY INFORMATION: The comments received, go to http://
Commodity Futures Trading Agency Information Collection
Activities; Proposed Collection; www.regulations.gov.
Commission (‘‘Commission’’) has
determined to reestablish its Comment Request; Safety Standard for FOR FURTHER INFORMATION CONTACT:
Technology Advisory Committee. The Infant Bath Seats Patricia Edwards, Project Manager,
Commission has determined that the Directorate for Engineering Sciences,
AGENCY: Consumer Product Safety
reestablishment of the advisory Consumer Product Safety Commission,
Commission.
committee is in the public interest in 4330 East West Highway, Bethesda, MD
ACTION: Notice. 20814; telephone (301) 504–7577;
connection with the duties imposed on
the Commission by the Commodity SUMMARY: The Consumer Product Safety pedwards@cpsc.gov.
Exchange Act, 7 U.S.C. 1–25, as Commission (CPSC) is announcing an SUPPLEMENTARY INFORMATION: Under the
amended. The Technology Advisory opportunity for public comment on the PRA (44 U.S.C. 3501–3520), Federal
Committee will operate for two years proposed collection of certain agencies must obtain approval from the
from the date it is reestablished unless, information by the agency. Under the Office of Management and Budget
before the expiration of that time period, Paperwork Reduction Act of 1995 (the (OMB) for each collection of
its charter is renewed in accordance PRA), Federal agencies are required to information they conduct or sponsor.
with section 14(a)(2) of the Federal publish notice in the Federal Register ‘‘Collection of information’’ is defined in
Advisory Committee Act, or the concerning each proposed collection of 44 U.S.C. 3502(3) and 5 CFR 1320.3(c)
Chairman of the Commission, with the information, and to allow 60 days for and includes agency requests or
concurrence of the other public comment in response to the requirements that members of the public
Commissioners, shall direct that the notice. This notice solicits comments on submit reports, keep records, or provide
information to a third party. Section Whether the proposed collection of use of automated collection techniques,
3506(c)(2)(A) of the PRA (44 U.S.C. information is necessary for the proper when appropriate, and other forms of
3506(c)(2)(A)) requires Federal agencies performance of CPSC’s functions, information technology.
to provide a 60-day notice in the including whether the information will Title: Safety Standard for Infant Bath
Federal Register concerning each have practical utility; (2) the accuracy of Seats—16 CFR 1215
proposed collection of information CPSC’s estimate of the burden of the Description: The rule would require
before submitting the collection to OMB proposed collection of information, each infant bath seat to comply with
for approval. To comply with this including the validity of the ASTM F 1967–08a, Standard Consumer
requirement, the CPSC is publishing methodology and assumptions used; (3) Safety Specification for Infant Bath
notice of the proposed collection of ways to enhance the quality, utility, and Seats.’’ Sections 8 and 9 of ASTM F
information set forth in this document. clarity of the information to be 1967–08a contain requirements for
With respect to the following collected; and (4) ways to minimize the marking and instructional literature.
collection of information, the CPSC burden of the collection of information We estimate the burden of this
invites comments on these topics: (1) on respondents, including through the collection of information as follows:
TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN

Number of Frequency Total annual Hours per Total burden
16 CFR section respondents of responses responses response hours
1215.2(a) .............................................................................. 2 1 2 0.5 1
There are no capital costs or operating estimated burden hours associated with Based on this analysis, the
and maintenance costs associated with labels is 30 minutes × 2 firms × 1 model requirements of the bath seat rule would
this collection of information. per firm = 60 minutes or 1 annual hour. impose a burden to industry of 1 hour
Our estimates are based on the The Commission estimates that at a cost of $27.78.
following: hourly compensation for the time Dated: May 25, 2010.
Proposed 16 CFR 1215.2(a) would
required to create and update labels is Todd Stevenson,
require each infant bath seat to comply
$27.78 (Bureau of Labor Statistics, Secretary, U.S. Consumer Product Safety
with ASTM F 1967–08a. Sections 8 and
September 2009, all workers, goods- Commission.
9 of ASTM F 1967–08a contain
producing industries, Sales and office, [FR Doc. 2010–13087 Filed 6–1–10; 8:45 am]
requirements for marking and
Table 9). Therefore, the estimated
instructional literature that are BILLING CODE 6355–01–P
annual cost associated with the
disclosure requirements, thus falling
Commission-recommended labeling
within the definition of ‘‘collections of
requirements is approximately $27.78. CONSUMER PRODUCT SAFETY
information’’ at 5 CFR 1320.3(c).
Section 8.6.1 of ASTM F 1967–08a Section 9.1 of ASTM F 1967–08a COMMISSION
requires that the name and ‘‘either the requires instructions to be supplied [CPSC Docket No. 10–C0004]
place of business (city, State, and with the product. Infant bath seats are
mailing address, including zip code) or products that generally require some Schylling Associates, Inc., Provisional
telephone number, or both’’ of the installation and maintenance, and Acceptance of a Settlement Agreement
manufacturer, distributor, or seller be products sold without such information and Order
clearly and legibly marked on ‘‘each would not be able to successfully
compete with products supplying this AGENCY: Consumer Product Safety
product and its retail package.’’ Section
8.6.2 of ASTM F 1967–08a requires that information. Under OMB’s regulations Commission.
‘‘a code mark or other means that (5 CFR 1320.3(b)(2)), the time, effort, ACTION: Notice.
identifies the date (month and year as a and financial resources necessary to
SUMMARY: It is the policy of the
minimum) of manufacture’’ be clearly comply with a collection of information
that would be incurred by persons in Commission to publish settlements
and legibly marked on ‘‘each product
the ‘‘normal course of their activities’’ which it provisionally accepts under the
and its retail package.’’ In both cases, the
are excluded from a burden estimate Consumer Product Safety Act in the
information must be placed on both the
where an agency demonstrates that the Federal Register in accordance with the
product and the retail package.
There are three known firms disclosure activities needed to comply terms of 16 CFR 1118.20(e). Published
supplying bath seats to the United are ‘‘usual and customary.’’ Therefore, below is a provisionally-accepted
States market. One of the three firms is because the CPSC is unaware of infant Settlement Agreement with Schylling
known to already produce labels that bath seats that: (a) Generally require Associates, Inc., containing a civil
comply with sections 8.6.1 and 8.6.2 of some installation, but (b) lack any penalty of $400,000.00.
the standard, so there would be no instructions to the user about such DATES: Any interested person may ask
additional burden on this firm. The installation, we tentatively estimate that the Commission not to accept this
remaining two firms are assumed to there are no burden hours associated agreement or otherwise comment on its
already use labels on both their with the instruction requirement in contents by filing a written request with
products and their packaging, but might section 9.1 of ASTM F 1967–08a the Office of the Secretary by June 17,
need to make some modifications to because any burden associated with 2010.
their existing labels. The estimated time supplying instructions with an infant ADDRESSES: Persons wishing to
required to make these modifications is bath seat would be ‘‘usual and comment on this Settlement Agreement
about 30 minutes per model. Each of customary’’ and not within the should send written comments to the
these firms supplies an average of one definition of ‘‘burden’’ under OMB’s Comment 10–C0004, Office of the
model of infant bath seat, therefore, the regulations. Secretary, Consumer Product Safety
Commission, 4330 East West Highway, 2001 until at least September 2002. The Tops from an independent laboratory
Room 820, Bethesda, Maryland 20814– were sold or offered for sale to consumers at demonstrating that the wooden handles of
4408. toy stores and gift shops nationwide from production samples from each of the Thomas
July 2001 until at least September 2002, for and Friends, Curious George, and Circus
FOR FURTHER INFORMATION CONTACT: Alex about $13 per unit. style spinning top toys respectively,
Dennis, Attorney, Division of 6. Between April 2003 and May 2003, representing altogether as many as 9 samples,
Enforcement and Information, Office of Schylling imported approximately 3,600 bore paint or other surface coating materials
the General Counsel, Consumer Product units of certain Winnie-the-Pooh style whose lead content exceeded the permissible
Safety Commission, 4330 East West spinning top toys, which also had been limit of 0.06 percent set forth in the Lead-
Highway, Bethesda, Maryland 20814– produced in China by Sanda Kan. Schylling Paint Ban. On July 15, 2002, as a result of re-
distributed these Winnie-the-Pooh tops to its testing conducted in Hong Kong at its behest,
4408; telephone (301) 504–7817.
U.S. customers from April until November Schylling obtained an additional three failing
SUPPLEMENTARY INFORMATION: The text of 2003. The Winnie-the-Pooh tops were sold or test reports from an independent laboratory
the Agreement and Order appears offered for sale to consumers at toy stores and that confirmed the June 30th and July 1st
below. gift shops nationwide from April until results with respect to another set of
November 2003, for about $12 per unit. production samples from each of these three
7. The Pails, Tops and Winnie-the-Pooh styles of spinning top toys. For the reasons
Todd A. Stevenson, tops described in paragraphs 4 through 6 further discussed in paragraphs 21 and 22
Secretary. above (collectively, the ‘‘Subject Products’’) below, however, Schylling reportedly
are ‘‘consumer product(s),’’ and, at all times concluded at the time that it had resolved the
United States of America
relevant hereto, Schylling was a lead-containing paint problem before any
Consumer Product Safety Commission ‘‘manufacturer’’ of those consumer products, non-compliant Tops were imported into the
which were ‘‘distributed in commerce,’’ as United States. In order to avoid any lead-in-
CPSC Docket No. 10–C0004 those terms are defined in CPSA sections paint problems in the future, Schylling then
In the Matter of Schylling Associates, Inc.; 3(a)(3), (5), (8), and (11), 15 U.S.C. 2052(a)(3), instructed its manufacturer, Sanda Kan, that
Settlement Agreement (5), (8), and (11). henceforth all spinning top toys had to be
1. In accordance with 16 CFR 1118.20, 8. The Subject Products are articles made with unpainted plastic rather than
Schylling Associates, Inc. (‘‘Schylling’’) and intended to be entrusted to or for use by wooden handles, and had to pass applicable
the staff (‘‘Staff’’) of the United States children, and, therefore, are subject to the testing for the presence of lead.
Consumer Product Safety Commission requirements of the Commission’s Ban of 12. Some five years later, in early August
(‘‘CPSC’’ or the ‘‘Commission’’) enter into this Lead-Containing Paint and Certain Consumer 2007, a Chicago Tribune news reporter
Settlement Agreement (‘‘Agreement’’). The Products Bearing Lead-Containing Paint, 16 contacted Schylling and informed it that a
Agreement and the incorporated attached CFR Part 1303 (the ‘‘Lead-Paint Ban’’). Under sample of the Thomas and Friends style Top,
Order (‘‘Order’’) settle the Staff’s allegations the Lead-Paint Ban, toys and other children’s purchased from a U.S. consumer via a Web
set forth below. articles must not bear ‘‘lead-containing site, had been tested by an independent
paint,’’ defined as paint or other surface laboratory for the presence of lead-containing
Parties coating materials whose lead content is more paint and yielded failing results. Upon
2. The Commission is an independent than 0.06 percent of the weight of the total learning this information, Schylling
Federal regulatory agency established nonvolatile content of the paint or the weight submitted reports to CPSC under Section
pursuant to, and responsible for the of the dried paint film. 16 CFR 1303.2(b)(1) 1 15(b) with respect to the subject Tops and
enforcement of, the Consumer Product Safety 9. On March 7, 2002, as a result of testing Pails, as further discussed in paragraph 24
Act, 15 U.S.C. 2051–2089 (‘‘CPSA’’). conducted in Hong Kong at its behest, below. On August 22, 2007, the Commission
3. Schylling is a corporation organized and Schylling obtained a test report from an and Schylling announced a recall of about
existing under the laws of the independent laboratory demonstrating that 66,000 Tops and about 4,700 Pails because
Commonwealth of Massachusetts, with the wooden handles of as many as 12 ‘‘Surface paints on the wooden handles of the
principal offices located in Rowley, production samples of the Primary Colors
tops and pails contain excessive levels of
Massachusetts. At all times relevant hereto, (red/yellow) style tin pail toys bore paint or
lead, which violates the federal lead paint
Schylling designed, imported and sold toys other surface coating materials whose lead
standard. Lead is toxic if ingested by young
and children’s products. content exceeded the permissible limit of
children and can cause adverse health
0.06 percent set forth in the Lead-Paint Ban.
Staff Allegations effects.’’
In late March 2002, without furnishing any
13. On September 28, 2007, a
A. Introduction/Distribution in Commerce of copy of the associated test report, Eway
representative of one of Schylling’s licensors,
Banned Toys informed Schylling that the supplier of the
the Walt Disney Company, informed
yellow and red paints used on the Pails had
4. From January 24, 2002 through March Schylling that at Disney’s behest a sample of
conducted re-testing and confirmed that the
2002, Schylling imported approximately paints failed to comply with the Lead-Paint the Winnie-the-Pooh style spinning top toys
10,200 units of certain tin pail toys (‘‘Pails’’), Ban. had been tested by an independent
consisting of Thomas and Friends, Curious 10. Shortly after March 2002, following a laboratory, which determined that the top’s
George, and Primary Colors (red/yellow) brief evaluation of possibly purchasing wooden handle bore red paint whose lead
styles, which had been produced in China by additional pails from Eway having a clear content exceeded the permissible limit of
one of its Hong Kong manufacturers, Eway (lacquer) finish instead of paint, Schylling 0.06 percent set forth in the Lead-Paint Ban.
Enterprises, Ltd. (‘‘Eway’’). Schylling reportedly severed its business relationship Until that time Schylling reportedly was
distributed approximately 4,700 units of the with Eway due to the referenced lead paint unaware that it had sold any Winnie-the-
Pails to its customers in February and March test failures. Beginning March 26, 2002, Pooh tops with wooden handles, as it
2002. The Pails were sold or offered for sale Schylling, without informing CPSC, initiated supposedly had ordered the Winnie-the-Pooh
to consumers at toy stores and gift shops a unilateral recall of the Pails from its tops from Sanda Kan with unpainted plastic
nationwide in February and March 2002, for customers, as further discussed in paragraphs rather than wooden handles, and the non-
about $6 per unit. 19 and 20 below. compliant tops reportedly had not been
5. Between June 2001 and June 2002, 11. On June 30 and July 1, 2002, as a result detected during Schylling’s normal quality
Schylling imported approximately 66,000 of testing conducted in Hong Kong at its control review of incoming shipments. Even
units of certain spinning top toys (‘‘Tops’’), behest, Schylling obtained three test reports though it had sold this toy only in 2003,
consisting of Thomas and Friends, Curious Schylling was able to locate in storage a pair
George, and Circus styles, which had been 1 At the time of the alleged violations stated in of the Winnie-the-Pooh tops that it believed
produced in China by another of its Hong this Settlement Agreement, the permissible limit of to be from the same shipment as the sample
Kong manufacturers, Sanda Kan Industrial, 0.06 percent was in effect for the Lead-Paint Ban. tested by Disney, and the items were sent to
Ltd. (‘‘Sanda Kan’’). Schylling distributed As of August 14, 2009, the limit was amended to an independent laboratory for confirmatory
these Tops to its U.S. customers from July 0.009 percent pursuant to 15 U.S.C. 1278a(f)(1). testing.
14. On October 22, 2007, as a result of that out of the nearly 10,200 imported Pails the Thomas and Friends style Top had been
testing conducted in Hong Kong at its behest, affected by this issue, only about 4,700 units purchased from a U.S. consumer via an
Schylling obtained a test report from an had been shipped to its U.S. customers, the Internet auction Web site in relation to an
independent laboratory demonstrating that shipments occurred in February and March upcoming news story, and had subsequently
the wooden handles of both samples of the 2002, and that hundreds of its customers had failed independent lab testing for the
Winnie-the-Pooh tops bore red paint whose received some quantity of these units. presence of lead-containing paint.
lead content exceeded the permissible limit 20. At the conclusion of its investigation of Specifically, Schylling learned that the
of 0.06 percent set forth in the Lead-Paint this matter, beginning on March 26, 2002, University of Iowa Hygienic Laboratory had
Ban. Schylling promptly submitted a report Schylling reportedly notified every customer, tested the sample twice, and results
to CPSC under Section 15(b) with respect to by telephone and mail, that they should demonstrated that the Top’s wooden handle
the Winnie-the-Pooh tops, and on November return the Pails in their possession. However, bore red paint with a lead content of 2.4
7, 2007, the Commission and Schylling Schylling did not inform the Commission of percent. Schylling reportedly was surprised
announced an expansion of the original the non-compliance or other related to learn this information, and upon further
recall of Tops and Pails to include about information that could have allowed the investigation received from Sanda Kan a
3,600 of these tops because ‘‘Surface paint on CPSC staff to assess the attendant risks and passing test result obtained in 2001 that
the wooden handle of the top contains any need for corrective action. While this showed six bottles of wet paint, intended for
excessive levels of lead, violating the federal unilateral recall of the Pails reportedly use on the spinning top toys, had passed
lead paint standard.’’ succeeded in recovering approximately 84% testing for compliance with the European
15. Although Schylling reported no (or 3,948) of the shipped units, the rest of the Standard on Safety of Toys (EN71) limits for
incidents or injuries associated with the Pails were not recovered by Schylling at the soluble lead (albeit not total lead) content.
presence of excessive lead in the paint or time and for at least 5 years thereafter. After reviewing the situation, Schylling
other surface coatings of the Subject 21. Upon receiving the June 30 and July 1, determined that the Thomas and Friends
Products, it failed to take adequate action to 2002 failing test results on certain samples of style Top in question had been purchased
ensure that none would bear or contain lead- the spinning top toys, Schylling reportedly from Sanda Kan prior to July 2002, when
containing paint. That created a risk of lead contacted Sanda Kan immediately to inform Schylling instructed that the handles be
poisoning and adverse health effects to the factory that it was rejecting these tops changed to plastic.
children. because they could not be sold in the United 24. On August 9, 2007, Schylling filed a
16. The Subject Products constitute States, and to investigate the matter. In Section 15(b) report with the CPSC
‘‘banned hazardous products’’ under CPSA response to Schylling’s inquiries about the concerning the subject Tops. The next day,
section 8 and the Lead-Paint Ban, 15 U.S.C. status of its then-existing inventory of Tops on August 10, 2007, reportedly ‘‘out of an
2057 and 16 CFR 1303.1(a)(1), 1303.4(b), in and these failing test results, Sanda Kan abundance of caution,’’ Schylling filed a
that they bear or contain paint or other reportedly explained that it had recently Section 15(b) report with the CPSC
surface coating materials whose lead content changed paint suppliers and suspected that concerning the subject Pails.
exceeds the permissible limit of 0.06 percent the new supplier had been the source of the 25. By dates well before August 2007,
of the weight of the total nonvolatile content lead-containing paint. Sanda Kan assured Schylling knew or should have known that
of the paint or the weight of the dried paint Schylling that these failed samples were from at least a proportion of the subject Tops and
film. a new production run involving this new Pails distributed in commerce did not
17. Between June 2001 and November supplier, indicating that the scope of comply with the Lead-Paint Ban, in that they
2003, Schylling sold, manufactured for sale, spinning top toys affected by this non- bear or contain paint or other surface coating
offered for sale, distributed in commerce, or compliance issue included the most recent materials whose lead content exceeds the
imported into the United States, or caused Schylling purchase order, which had not yet permissible limit of 0.06 percent of the
one or more of such acts, with respect to the been imported into the United States. weight of the total nonvolatile content of the
Subject Products, in violation of section Schylling also had in its possession at the paint or the weight of the dried paint film.
19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). time two earlier passing test results that it Accordingly, Schylling had obtained
Schylling committed these prohibited acts believed to be pertinent: A November 1997 information that reasonably supported the
‘‘knowingly,’’ as that term is defined in test report showed that various paint colors conclusion that the subject Tops and Pails
section 20(d) of the CPSA, 15 U.S.C. 2069(d). from several Thomas and Friends style top failed to comply with an applicable
18. Pursuant to section 20 of the CPSA, 15 samples complied with the Lead-Paint Ban’s consumer product safety rule. CPSA section
U.S.C. 2069, Schylling is subject to civil regulatory limit for total lead content; and a 15(b)(1), 15 U.S.C. 2064(b)(1), required
penalties for the violations described in January 2000 test report showed that various Schylling to immediately inform the
paragraph 17. paints used on the same style tops likewise Commission of each of these failures to
complied. comply.
B. Failure To Report 22. Even though it had recently 26. Schylling’s failure to furnish
19. Upon receiving the March 7, 2002 encountered a similar non-compliance issue information to CPSC as required by CPSA
failing test results on certain samples of the involving the Pails and Eway, Schylling section 15(b)(1), 15 U.S.C. 2064(b)(1),
tin pail toys, Schylling reportedly halted reportedly concluded that it had resolved the violated section 19(a)(4) of the CPSA, 15
shipments immediately and locked-down its lead-containing paint problem regarding the U.S.C. 2068(a)(4), with respect to these toys.
relevant inventory to prevent any further Tops before any non-compliant units of these Schylling committed these prohibited acts
shipments of all three styles of the Pails, and toys were imported into the United States. ‘‘knowingly,’’ as that term is defined in
contacted Eway to investigate the matter. This conclusion was reportedly based on section 20(d) of the CPSA, 15 U.S.C. 2069(d).
Although it reportedly never obtained any Sanda Kan’s assurances, Schylling’s long- 27. Pursuant to section 20 of the CPSA, 15
failing lead test reports for them, Schylling standing business relationship with and U.S.C. § 2069, Schylling is subject to civil
included the Thomas and Friends and perception of that supplier as a reliable penalties for the violations described in
Curious George styles of Pails because it had source in the industry, the passing test paragraph 26.
reason to suspect they were also non- results from 1997 and 2000, and its
compliant as they had come from the same instructions to Sanda Kan to switch to plastic Responsive Allegations of Schylling
manufacturer, been part of the same handles. Schylling did not conduct testing 28. Schylling denies that it violated
shipments, and had similar red and yellow for the presence of lead on any Tops (with Sections 15(b)(1), 19(a)(1) or 19(a)(4) of the
painted wooden handles. Schylling and wooden handles) in its warehouse at the CPSA, 15 U.S.C. 2064(b)(1), 2068(a)(1), or
Eway determined the scope of product units time, and continued to ship them to its U.S. 2068(a)(4), and further denies that it did so
affected by this non-compliance issue customers for several more months until at ‘‘knowingly’’ (as defined in section 20(d) of
encompassed shipments from Hong Kong to least September 2002. the CPSA, 15 U.S.C. 2069(d)). Schylling
the United States initiated on January 24, 23. As previously described in paragraph further denies the factual or legal conclusions
2002 and February 28, 2002, relating to a 12, Schylling was contacted on August 7, or characterizations in the Staff Allegations,
single Schylling purchase order from early 2007, by a Chicago Tribune news reporter in paragraphs 4–27, including that Schylling
December 2001. Schylling further determined who informed the company that a sample of had any knowledge prior to August 2007 that
it had imported or sold any spinning tops and conclusions of law; and (5) any claims accepted; and it is further ordered, that
that did not comply with the lead paint under the Equal Access to Justice Act. Schylling shall pay a civil penalty in the total
standard. 36. The Commission may publish the terms amount of Four Hundred Thousand
29. Schylling never intentionally or of the Agreement and Order. ($400,000.00) dollars. The civil penalty shall
knowingly imported, sold or offered for sale 37. The Agreement and Order shall apply be paid in four (4) installments as follows:
any products that did not comply with the to, and be binding upon, Schylling and each $75,000.00 shall be paid within twenty (20)
lead paint standard or other legal of its successors and assigns. calendar days of service of the Commission’s
requirement. At all times relevant to this 38. The Commission issues the Order final Order accepting the Agreement;
matter, Schylling’s actions were reasonable, under the provisions of the CPSA, and $75,000.00 shall be paid on or before the one-
were based on its good faith understanding violation of the Order may subject those year anniversary of service of the
of the operative facts and fully satisfied any referenced in paragraph 37 to appropriate Commission’s final Order accepting the
and all standards of care. legal action. Agreement; $125,000.00 shall be paid on or
30. Schylling has entered into the 39. The Agreement may be used in before the two-year anniversary of service of
Agreement for settlement purposes only, to interpreting the Order. Understandings, the Commission’s final Order accepting the
avoid incurring additional expenses and the agreements, representations, or Agreement; and $125,000.00 shall be paid on
distraction of litigation. Accordingly, the interpretations apart from those contained in or before the three-year anniversary of service
Agreement and Order do not constitute, and the Agreement and Order may not be used to of the Commission’s final Order accepting
are not evidence of, any fault or wrongdoing vary or contradict its terms. The Agreement the Agreement. Each payment shall be made
on the part of Schylling. shall not be waived, amended, modified, or by check payable to the order of the United
otherwise altered, except in a writing that is States Treasury. Upon the failure of Schylling
Agreement of the Parties executed by the party against whom such to make any of the foregoing payments when
31. Under the CPSA, the Commission has waiver, amendment, modification, or due, (i) the entire amount of the civil penalty
jurisdiction over this matter and over alteration is sought to be enforced. shall become due and payable, and (ii)
Schylling. 40. If any provision of the Agreement and interest on the outstanding balance shall
32. The parties enter into the Agreement Order is held to be illegal, invalid, or accrue and be paid by Schylling at the
for settlement purposes only. The Agreement unenforceable under present or future laws Federal legal rate of interest set forth at 28
does not constitute an admission by effective during the terms of the Agreement U.S.C. 1961(a) and (b).
Schylling, or a determination by the and Order, such provision shall be fully Provisionally accepted and provisional
Commission, that Schylling knowingly severable. The balance of the Agreement and Order issued on the 26th day of May, 2010.
violated the CPSA. Order shall remain in full force and effect,
33. In settlement of the Staff’s allegations, unless the Commission and Schylling agree By Order of the Commission.
Schylling shall pay a civil penalty in the total that severing the provision materially affects Todd A. Stevenson,
amount of Four Hundred Thousand the purpose of the Agreement and Order. Secretary, U.S. Consumer Product Safety
($400,000.00) dollars. The civil penalty shall Schylling Associates, Inc. Commission.
be paid in four (4) installments as follows: [FR Doc. 2010–13088 Filed 6–1–10; 8:45 am]
$75,000.00 shall be paid within twenty (20) Dated: May 17, 2010.
calendar days of service of the Commission’s Jack Schylling,
final Order accepting the Agreement; President, Schylling Associates, Inc.
$75,000.00 shall be paid on or before the one- Dated: May 18, 2010.
year anniversary of the Commission’s final Victor E. Schwartz, DEPARTMENT OF DEFENSE
Order accepting the Agreement; $125,000.00 Cary Silverman,
shall be paid on or before the two-year Shook, Hardy & Bacon, LLP, 1155 F Street, Office of the Secretary
anniversary of service of the Commission’s NW., Suite 200, Washington, DC 20004–
final Order accepting the Agreement; and 1305. Counsel for Schylling Associates, Inc.
$125,000.00 shall be paid on or before the [Transmittal No. 10–06]
three-year anniversary of service of the U.S. Consumer Product Safety Commission
Commission’s final Order accepting the Staff. 36(b)(1) Arms Sales Notification
Agreement. Each payment shall be made by Cheryl A. Falvey,
General Counsel, Office of the General AGENCY: Defense Security Cooperation
check payable to the order of the United
States Treasury. Counsel. Agency, DoD.
34. Upon the Commission’s provisional Dated: May 18, 2010. ACTION: Notice.
acceptance of the Agreement, the Agreement Melissa V. Hampshire,
shall be placed on the public record and SUMMARY: The Department of Defense is
Assistant General Counsel,
published in the Federal Register in publishing the unclassified text of a
accordance with the procedures set forth in Alex Dennis,
Attorney, Division of Enforcement and
section 36(b)(1) arms sales notification
16 CFR 1118.20(e). In accordance with 16 to fulfill the requirements of section 155
CFR 1118.20(f), if the Commission does not Information, Office of the General Counsel.
of Public Law 104–164 dated 21 July
receive any written request not to accept the United States of America
Agreement within fifteen (15) days, the
1996.
Agreement shall be deemed finally accepted Consumer Product Safety Commission FOR FURTHER INFORMATION CONTACT: Ms.
on the sixteenth (16th) day after the date it CPSC Docket No. 10–C0004 B. English, DSCA/DBO/CFM, (703) 601–
is published in the Federal Register. 3740.
35. Upon the Commission’s final In the Matter of Schylling Associates, Inc.;
Order The following is a copy of a letter to
acceptance of the Agreement and issuance of
the final Order, Schylling knowingly, Upon consideration of the Settlement
the Speaker of the House of
voluntarily, and completely waives any Agreement entered into between Schylling Representatives, Transmittal 10–06 with
rights it may have in this matter to the Associates, Inc. (‘‘Schylling’’), and the U.S. attached transmittal, policy justification,
following: (1) An administrative or judicial Consumer Product Safety Commission and Sensitivity of Technology.
hearing; (2) judicial review or other challenge (‘‘Commission’’) staff, and the Commission

or contest of the validity of the Commission’s having jurisdiction over the subject matter
Mitchell S. Bryman,
Order or actions; (3) a determination by the and over Schylling, and it appearing that the
Commission of whether Schylling failed to Settlement Agreement and Order are in the Alternate OSD Federal Register Liaison
comply with the CPSA and its underlying public interest, it is ordered, that the Officer, Department of Defense.
regulations; (4) a statement of findings of fact Settlement Agreement be, and hereby is, BILLING CODE 5001-06-P
EN02JN10.305</GPH>
EN02JN10.306</GPH>
EN02JN10.307</GPH>
[FR Doc. 2010–13096 Filed 6–1–10; 8:45 am] SUMMARY: The Defense Intelligence • Federal Rulemaking Portal: http://
BILLING CODE 5001–06–C Agency is proposing to alter a system of www.regulations.gov. Follow the
records in its existing inventory of instructions for submitting comments.
records systems subject to the Privacy • Mail: Federal Docket Management
DEPARTMENT OF DEFENSE Act of 1974, (5 U.S.C. 552a), as System Office, 1160 Defense Pentagon,
amended. Washington, DC 20301–1160.
Office of the Secretary
DATES: This proposed action will be Instructions: All submissions received
[Docket ID: DOD–2010–OS–0073] effective without further notice on July must include the agency name and
2, 2010, unless comments are received docket number for this Federal Register
Privacy Act of 1974; System of which result in a contrary document. The general policy for
Records determination. comments and other submissions from
AGENCY: Defense Intelligence Agency, members of the public is to make these
ADDRESSES: You may submit comments, submissions available for public
DoD.
identified by docket number and title, viewing on the Internet at http://
ACTION: Notice to alter a system of
by any of the following methods: www.regulations.gov as they are
records.
received without change, including any
EN02JN10.308</GPH>
personal identifiers or contact PURPOSE(S): except to the extent that disclosure

information. Delete entry and replace with would reveal the identity of a
‘‘Information is collected to determine confidential source. Note: When
FOR FURTHER INFORMATION CONTACT: Ms.
the facts and circumstances surrounding claimed, this exemption allows limited
Theresa Lowery at (202) 231–1193. protection of investigative reports
a compliant filed with the Office of the
SUPPLEMENTARY INFORMATION: The Inspector General and to allow for the maintained in a system of records used
Defense Intelligence Agency system of documentation of records relating to the in personnel or administrative actions.
records notices subject to the Privacy organization, planning, and execution of Investigatory material compiled solely
Act of 1974, (5 U.S.C. 552a), as audits, inspections and investigations for the purpose of determining
amended, have been published in the and for use as a sound basis for action.’’ suitability, eligibility, or qualifications
Federal Register and are available from * * * * * for federal civilian employment,
the Defense Intelligence Agency, DAN military service, federal contracts, or
1–C, 200 MacDill Blvd., Washington, DC RETRIEVABILITY: access to classified information may be
20340–0001. Delete entry and replace with ‘‘By exempt pursuant to 5 U.S.C. 552a(k)(5),
The proposed system report, as name and/or case number.’’ but only to the extent that such material
required by 5 U.S.C. 552a of the Privacy * * * * * would reveal the identity of a
Act of 1974, as amended, was submitted confidential source.
on May 21, 2010, to the House NOTIFICATION PROCEDURE: Evaluation material used to determine
Committee on Oversight and Delete entry and replace with potential for promotion in the Military
Government Reform, the Senate ‘‘Individuals seeking to determine Services may be exempt pursuant to 5
Committee on Homeland Security and whether information about themselves U.S.C. 552a(k)(7), but only to the extent
Governmental Affairs, and the Office of is contained in this system of records that the disclosure of such material
Management and Budget (OMB) should address written inquiries to the would reveal the identity of a
pursuant to paragraph 4c of Appendix I Freedom of Information Act Office confidential source.
to OMB Circular No. A–130, ‘‘Federal (DAN–1A/FOIA), Defense Intelligence An exemption rule for this exemption
Agency Responsibilities for Maintaining Agency, 200 MacDill Blvd, Washington, has been promulgated in accordance
Records About Individuals,’’ dated DC 20340–5100. with requirements of 5 U.S.C. 553(b)(1),
February 8, 1996 (February 20, 1996; 61 Individual should provide their full (2), and (3), (c) and (e) and published in
FR 6427). name, current address, and telephone 32 CFR part 505. For additional
number.’’ information contact the system
manager.’’
Mitchell S. Bryman, RECORD ACCESS PROCEDURES:
Alternate OSD Federal Register Liaison Delete entry and replace with LDIA 0271
Officer, Department of Defense. ‘‘Individuals seeking access to
SYSTEM NAME:
information about themselves contained
LDIA 0271 Investigations and Complaints.
in this system should address written
SYSTEM NAME: inquiries to the Freedom of Information SYSTEM LOCATION:
Act Office (DAN–1A/FOIA), Defense
Investigations and Complaints (April Defense Intelligence Agency,
Intelligence Agency, 200 MacDill Blvd,
10, 2008; 73 FR 19477). Washington, DC 20340–5100.
Washington, DC 20340–5100.
CHANGES: Individual should provide their full CATEGORIES OF INDIVIDUALS COVERED BY THE
name, current address, and telephone SYSTEM:
* * * * *
number.’’ Current and former civilian, military,
CATEGORIES OF INDIVIDUALS COVERED BY THE * * * * * or contract personnel who file a
SYSTEM: complaint or were the subject of an
RECORD SOURCE CATEGORIES:
Delete entry and replace with investigation conducted by the agency.
Delete entry and replace with ‘‘From
‘‘Current and former civilian, military, individuals of an investigation or CATEGORIES OF RECORDS IN THE SYSTEM:
or contract personnel who file a complaint, records also derived from
complaint or were the subject of an Name, Social Security Number (SSN),
personnel, medical and/or security date of birth, telephone number and
investigation conducted by the agency.’’ records as well as agency officials.’’ address; documents relating to the
CATEGORIES OF RECORDS IN THE SYSTEM: organization, planning and execution of
EXEMPTIONS CLAIMED FOR THE SYSTEM:
audits, inspections, or investigations.
Delete entry and replace with ‘‘Name, Delete entry and replace with ‘‘Parts of
Social Security Number (SSN), date of this system may be exempt under 5 AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
birth, telephone number and address; U.S.C. 552a(k)(2), (k)(5), or (k)(7), as Public Law 95–452, The Inspector
documents relating to the organization, applicable. General Act of 1978, as amended; DoD
planning and execution of audits, Investigatory material compiled for Instruction 5106.3, Inspector General of
inspections, or investigations.’’ law enforcement purposes, other than the Department of Defense; DIA
material within the scope of subsection Directive 5100.200, Office of the
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. 552a(j)(2), may be exempt Inspector General Policies and
Delete entry and replace with ‘‘Public pursuant to 5 U.S.C. 552a(k)(2). Procedures; and E.O. 9397 (SSN), as
Law 95–452, The Inspector General Act However, if an individual is denied any amended.
of 1978, as amended; DoD Instruction right, privilege, or benefit for which he
5106.3, Inspector General of the would otherwise be entitled by Federal PURPOSE(S):
Department of Defense; DIA Directive law or for which he would otherwise be Information is collected to determine
5100.200, Office of the Inspector eligible, as a result of the maintenance the facts and circumstances surrounding
General Policies and Procedures; and of such information, the individual will a compliant filed with the Office of the
E.O. 9397 (SSN), as amended.’’ be provided access to such information Inspector General and to allow for the
documentation of records relating to the Individual should provide their full U.S.C. 552a(k)(7), but only to the extent
organization, planning, and execution of name, current address, and telephone that the disclosure of such material
audits, inspections and investigations number. would reveal the identity of a
and for use as a sound basis for action. confidential source.
RECORD ACCESS PROCEDURES:
ROUTINE USES OF RECORDS MAINTAINED IN THE Individuals seeking access to An exemption rule for this exemption
SYSTEM, INCLUDING CATEGORIES OF USERS AND information about themselves contained has been promulgated in accordance
THE PURPOSES OF SUCH USES:
in this system should address written with requirements of 5 U.S.C. 553(b)(1),
In addition to those disclosures inquiries to the Freedom of Information (2), and (3), (c) and (e) and published in
generally permitted under 5 U.S.C. Act Office (DAN–1A/FOIA), Defense 32 CFR part 505. For additional
552a(b) of the Privacy Act of 1974, these Intelligence Agency, 200 MacDill Blvd, information contact the system manager.
records contained therein may Washington, DC 20340–5100. [FR Doc. 2010–13299 Filed 6–1–10; 8:45 am]
specifically be disclosed outside the Individual should provide their full BILLING CODE 5001–06–P
DoD as a routine use pursuant to 5 name, current address, and telephone
U.S.C. 552a(b)(3) as follows: number.
The DoD ‘Blanket Routine Uses’ set DEPARTMENT OF DEFENSE
forth at the beginning of the DIA’s CONTESTING RECORD PROCEDURES:
compilation of systems of records DIA’s rules for accessing records, for Office of the Secretary
notices apply to this system. contesting contents and appealing
initial agency determinations are
POLICIES AND PRACTICES FOR STORING, [Docket ID: DOD–2010–OS–0070]
published in DIA Instruction 5400.001
RETRIEVING, ACCESSING, RETAINING, AND
‘‘Defense Intelligence Agency Privacy U.S. Court of Appeals for the Armed
DISPOSING OF RECORDS IN THE SYSTEM:
Act Program;’’ 32 CFR part 319—Defense Forces Proposed Change to Electronic
STORAGE: Intelligence Agency Privacy Program; or Filing Guidelines
Paper records in file folders and may be obtained from the system
electronic storage media. manager. AGENCY: Department of Defense (DoD).
RETRIEVABILITY: RECORD SOURCE CATEGORIES: ACTION: Notice of proposed change to
By name and/or case number. From individuals of an investigation the Electronic Filing Guidelines of the
or complaint, records also derived from United States Court of Appeals for the
SAFEGUARDS: personnel, medical and/or security Armed Forces.
Records are stored in office buildings records as well as agency officials.
protected by guards, controlled EXEMPTIONS CLAIMED FOR THE SYSTEM: SUMMARY: This notice announces the
screenings, use of visitor registers, following proposed change by Court
electronic access, and/or locks. Access Parts of this system may be exempt
under 5 U.S.C. 552a(k)(2), (k)(5), or Order to the Electronic Filing
to records is limited to individuals who Guidelines of the United States Court of
are properly screened and cleared on a (k)(7), as applicable.
Investigatory material compiled for Appeals for the Armed Forces.
need-to-know basis in the performance
of their duties. Passwords and User IDs law enforcement purposes, other than DATES: Comments on the proposed
are used to control access to the system material within the scope of subsection change must be received within 30 days
data, and procedures are in place to 5 U.S.C. 552a(j)(2), may be exempt of the date of this notice.
deter and detect browsing and pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any ADDRESSES: You may submit comments,
unauthorized access. Physical and identified by docket number and title by
electronic access is limited to persons right, privilege, or benefit for which he
would otherwise be entitled by Federal any of the following methods:
responsible for servicing and authorized
to use the system. law or for which he would otherwise be • Federal eRulemaking Portal: http://
eligible, as a result of the maintenance www.regulations.gov. Follow the
RETENTION AND DISPOSAL: of such information, the individual will instructions for submitting comments.
Permanent—Maintain audits and be provided access to such information
except to the extent that disclosure • Mail: Federal Docket Management
inspections on site for 3 years, then System Office, 1160 Defense Pentagon,
transfer to the Washington National would reveal the identity of a
confidential source. NOTE: When OSD Mailroom 3C843, Washington, DC
Records Center (WNRC), then retire to 20301–1160.
the National Archives Records claimed, this exemption allows limited
Administration when 20 years old. protection of investigative reports Instructions: All submissions received
maintained in a system of records used must include the agency name and
SYSTEM MANAGER(S) AND ADDRESS: in personnel or administrative actions. docket number for this Federal Register
Director, Inspector General’s Office, Investigatory material compiled solely document. The general policy for
Defense Intelligence Agency, for the purpose of determining comments and other submissions from
Washington, DC 20340–5100. suitability, eligibility, or qualifications members of the public is to make these
for federal civilian employment, submissions available for public
NOTIFICATION PROCEDURE: military service, federal contracts, or viewing on the Internet at http://
Individuals seeking to determine access to classified information may be regulations.gov as they are received
whether information about themselves exempt pursuant to 5 U.S.C. 552a(k)(5), without change, including personal
is contained in this system of records but only to the extent that such material identifiers or contact information.
should address written inquiries to the would reveal the identity of a
Freedom of Information Act Office confidential source. FOR FURTHER INFORMATION CONTACT:
(DAN–1A/FOIA), Defense Intelligence Evaluation material used to determine William A. DeCicco, Clerk of the Court,
Agency, 200 MacDill Blvd, Washington potential for promotion in the Military telephone (202) 761–1448.
DC 20340–5100. Services may be exempt pursuant to 5
Dated: May 26, 2010. Counsel shall electronically file pleadings format. Previously, only petition stage
Mitchell S. Bryman, using an electronic mail message at the documents could be filed electronically.
Alternate OSD Federal Register Liaison following e-mail address: If a pleading is filed electronically,
Officer, Department of Defense. efiling@armfor.uscourts.gov. For questions or paper copies will not be filed. As an
help concerning the electronic filing of
Proposed New Order for Electronic pleadings, counsel should contact the Clerk’s
alternative, filing on paper will still be
Filing of Pleadings Office at (202) 761–1448. permitted in lieu of electronic filing.
3. Procedure. [FR Doc. 2010–13095 Filed 6–1–10; 8:45 am]
Effective (date), all pleadings, except as a. The electronic filing of a pleading in BILLING CODE 5001–06–P
noted below, may be filed on paper or compliance with these Guidelines shall
electronically in accordance with the constitute filing under the Rules of Practice
guidelines attached to this Order. Joint and Procedure. The pleading will be deemed
Appendices to Briefs, filed under Rule 24(f), DEPARTMENT OF DEFENSE
filed as of the date and time of the
Rules of Practice and Procedure, shall be transmission of the electronic mail message.
filed in paper form only. Administrative Department of the Navy
b. The electronic mail message shall
matters, such as bar admission applications contain the following in the subject block: (1)
and attorney disciplinary proceedings, may Notice of Intent To Grant Exclusive
The name of the case; (2) the docket number
not be filed electronically. Attorneys Patent License; AmberWave Systems
if a docket number has been assigned; and (3)
appearing before the Court are reminded that Corporation
the words ‘‘electronic filing.’’ A description of
personal data identifiers must be redacted
the nature of the pleading will be included AGENCY: Department of the Navy, DoD.
from documents filed electronically. See
in the body of the electronic mail message.
Guideline paragraph 3h. ACTION: Notice; revision.
c. The pleading shall be attached to the
This Order supersedes the Order of the
electronic mail message in Portable SUMMARY: The Department of the Navy
Court of July 15, 2009, concerning electronic
Document Format (PDF), and, when printed,
filing of petition documents, and that Order published a document in the Federal
shall be in compliance with the Rules of
is hereby rescinded effective (date). Register on August 6, 2009, announcing
Practice and Procedure of the Court.
Guidelines for Electronic Filing of Pleadings d. Counsel shall send an electronic copy of the intent to grant to AmberWave
1. Scope. the message and all attachments to opposing Systems Corporation, a revocable,
The United States Court of Appeals for the counsel to accomplish service of the pleading nonassignable, exclusive license. The
Armed Forces adopts the following under Rule 39. This may be accomplished by scope of the intent to license has been
provisions to govern the electronic filing of listing opposing counsel as a ‘‘cc’’ recipient of revised.
pleadings: the electronic message.
FOR FURTHER INFORMATION CONTACT: Rita
a. This Order applies to all pleadings filed e. The brief attached to an electronic filing
shall contain the conformed signature (‘‘/s/’’) Manak, Head, Technology Transfer
electronically on or after (date).
or digital signature of the attorney of record. Office, NRL Code 1004, 4555 Overlook
Alternatively, pleadings may be filed in a
paper format; however, the same pleading This will comply with the requirements of Avenue, SW., Washington, DC 20375–
may not be filed both electronically and on Rule 38. 5320, telephone 202–767–3083. Due to
paper. f. If a pleading is filed electronically in U.S. Postal delays, please fax 202–404–
b. Administrative matters, such as bar accordance with this Order, the party filing 7920, e-mail: rita.manak@nrl.navy.mil
admission applications and attorney the pleading is not required to prepare and or use courier delivery to expedite
disciplinary proceedings, may not be filed file printed copies of that pleading under response.
electronically. Rules 37(a) and 37(b)(2). The Court will send
c. If the supplement to the petition for a reply electronic message to the sender Need for Revision
grant of review is filed electronically, an indicating receipt of the electronic filing.
Electronic filers are advised that if they do
In the Federal Register of August 6,
appendix to the supplement (containing the
decision of the Court of Criminal Appeals, not receive a reply electronic message by the 2009, in DOCID: fr06au09–45, make the
matters submitted pursuant to United States following business day, they should following revision:
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and immediately contact the Clerk’s Office. 1. In the first column, on page 39308,
other required matter) shall also be filed g. Classified material and material under revise the SUMMARY caption to read as
electronically unless it consists of more than seal will not be filed electronically. If such follows:
50 pages. In such a case, the appendix may matters need to be filed, they will be ‘‘SUMMARY: The Department of the Navy
be submitted on paper and the supplement submitted to the Court on paper as a hereby gives notice of its intent to grant
submitted electronically. In lieu of supplemental filing to the document in
submitting an appendix in excess of 50 pages which they would otherwise appear. In such
to AmberWave Systems Corporation, a
on paper, counsel may submit it in a CD or cases, counsel will include in the text of the revocable, nonassignable, exclusive
DVD format and note in the supplement that electronic mail message a notation that license to practice in the field of use of
it is being filed in that format under separate classified or sealed material is being substrates for laser diodes, light emitting
cover. Record matters in the form of video separately submitted. The classified or sealed diodes, radio frequency power
media on CD–ROM or DVD may be submitted material will be appropriately packaged, amplifiers, radio frequency power
in a separate volume of the appendix that is marked and delivered, and will include a transistor devices, and power devices
filed in accordance with Rule 21(b). notation that it accompanies an electronic and their use for the fabrication of laser
d. A petition for grant of review filed filing in the case. All classified material will
personally by an appellant shall be filed on
diodes, light emitting laser diodes, light
be handled in accordance with Rule 12.
paper, as provided under Rule 20(a). All h. Counsel will refrain from including and
emitting diodes, radio frequency power
subsequent documents related to the petition shall redact the following personal data amplifiers, power transistor devices,
for grant of review filed by counsel in such identifiers from documents filed with the and power devices in the United States,
a case may be filed on paper or Court: the Government-owned inventions
electronically. • Social security numbers described in U.S. Patent No. 6,323,108:
e. The Joint Appendix to the brief will be • Names of minors Fabrication of Ultra-Thin Bonded
filed in paper form only with the required • Dates of birth Semiconductor Layers, Navy Case No.
number of paper copies rather than • Financial account numbers
electronically. If the appellant or petitioner
78,980.//U.S. Patent No. 6,328,796:
• Home addresses. Single Crystal Material on Non-Single
files the brief electronically, the Joint
Appendix will be filed on the same day the Comment: The proposed change will Crystalline Substrate, Navy Case No.
brief is filed electronically. authorize all pleadings, except as noted 78,978.//U.S. Patent No. 6,497,763:
2. Electronic Filing Address. in the Order, to be filed in an electronic Electronic Device with Composite
Substrate, Navy Case No. 82,672.//U.S. Absolute Priority: For FY 2010 and funded under the absolute priority also
Patent No. 6,593,212: Method for any subsequent year in which we make must meet the programmatic and
Making Electro-Optical Devices Using a awards from the list of unfunded administrative requirements specified in
Hydrogen Ion Splitting Technique, Navy applicants from this competition, this the priority.
Case No. 79,639.//U.S. Patent No. priority is an absolute priority. Under 34 Application Requirements. To meet
7,358,152: Wafer Bonding of Thinned CFR 75.105(c)(3) we consider only the requirements of this priority, the
Electronic Materials and Circuits to applications that meet this priority. applicant, at a minimum, must—
High Performance Substrate, Navy Case This priority is: (a) Include in the application, the
No. 84,023.//U.S. Patent No. 7,535,100: Technology and Media Services for criteria the applicant will use to select
Wafer Bonding of Thinned Electronic Individuals with Disabilities— television programs of high educational
Materials and Circuits to High Television Access value that are widely available and are
Performance Substrates, Navy Case No. Background appropriate for use in the classroom
84,023 and any continuations, setting for children with disabilities at
divisionals or re-issues thereof.’’ The Federal Communications the preschool, elementary, or secondary
DATES: Anyone wishing to object to the Commission (FCC) is responsible for level. The application must also discuss
grant of this license must file written implementing and monitoring how, in selecting the programming to be
objections along with supporting compliance with the captioning video described, or video described and
evidence, if any, not later than June 17, requirements of the captioned, the applicant will take into
2010. Telecommunications Act of 1996 (Act). account the preferences of educators,
Consistent with the Act, the FCC students with disabilities, and the
Dated: May 27, 2010. requires most television programs to be
L.R. Almand,
parents of these students;
captioned, but provides for certain (b) Identify, in the application, the
Office of the Judge Advocate General, U.S. exemptions to this requirement. The
Navy, Federal Register Liaison Officer. extent to which the programming
FCC does not have similar requirements selected for video description or video
[FR Doc. 2010–13283 Filed 6–1–10; 8:45 am] or exemptions in place for video description and captioning is widely
BILLING CODE 3810–FF–P description, which provides access to available;
television programs for individuals with
(c) Identify, in the application, the
blindness or low vision. Therefore, only
total number of program hours proposed
DEPARTMENT OF EDUCATION a limited number of television programs
to be made accessible through video
include video description. The
Office of Special Education and description, or video description and
following Web sites provide more
Rehabilitative Services; Overview captioning under the project.
information on captioning and video
Information; Technology and Media (d) Specify, in the application, the
description: http://www.fcc.gov/cgb/
Services for Individuals With consumerfacts/closedcaption.html and cost per hour for video description and,
Disabilities—Television Access; Notice http://www.fcc.gov/cgb/dro/video- if the applicant is proposing both video
Inviting Applications for New Awards description.html. description and captioning, the cost per
for Fiscal Year (FY) 2010 The Department has made awards for hour for video description and for
television access since 1995 in order to captioning;
Catalog of Federal Domestic Assistance provide video description and (e) For each program to be video
(CFDA) Number: 84.327C. described or video described and
captioning under the Technology and
Dates: Media Services for Individuals with captioned, identify, in the application,
Applications Available: June 2, 2010. Disabilities program. The following Web the source of any private or other public
Deadline for Transmittal of site contains abstracts of previously support, and the projected dollar
Applications: July 19, 2010. funded projects: http:// amount of that support, if any;
Deadline for Intergovernmental publicddb.tadnet.org/. (Use the keyword (f) Provide evidence, in the
Review: September 15, 2010. search function with the term ‘‘video application, of the willingness of
Full Text of Announcement description.’’) Despite these efforts, not potential program providers or program
all television programs that are owners, as appropriate, to permit and
I. Funding Opportunity Description appropriate for use in the classroom facilitate the video description or the
Purpose of Program: The purposes of setting for children with disabilities are video description and captioning of
the Technology and Media Services for being video described or captioned. their programs;
Individuals with Disabilities program Priority: The purpose of this absolute (g) Provide, in the application,
are to: (1) Improve results for children priority for Television Access is to fund assurances from potential program
with disabilities by promoting the cooperative agreements that will providers or program owners, as
development, demonstration, and use of improve the learning opportunities for appropriate, stating that, after their
technology; (2) support educational children with disabilities by providing programming is video described or
media services activities designed to be access to television programming video described and captioned, the
of educational value in the classroom through video description and program providers or program owners,
setting to children with disabilities; and captioning. This project will support as appropriate, will require that the
(3) provide support for captioning and access—through video description and programming made accessible under
video description that are appropriate captioning—to widely available this project will continue to contain
for use in the classroom setting. television programs that are appropriate those video descriptions or video
Priority: In accordance with 34 CFR for use in the classroom setting and are descriptions and captions;
75.105(b)(2)(v), this priority is from not otherwise required to be captioned (h) Identify, in the application, the
allowable activities specified in the by the FCC. anticipated shelf-life and range of
statute, or otherwise authorized in the To be considered for funding under distribution of the programming that it
statute (see sections 674(c) and 681(d) of this absolute priority, applicants must proposes to video describe or video
the Individuals with Disabilities meet the application requirements describe and caption under this project,
Education Act (IDEA)). contained in the priority. All projects without further costs to the project;
(i) If the applicant is proposing both Administrative Regulations (EDGAR) in use a telecommunications device for the
video description and captioning, 34 CFR parts 74, 75, 77, 79, 80, 81, 82, deaf (TDD), call, toll free: 1–877–576–
provide, in the application, assurances 84, 85, 86, 97, 98, and 99. 7734.
from potential program providers or Note: The regulations in 34 CFR part 79 You can contact ED Pubs at its Web
program owners, as appropriate, stating apply to all applicants except federally site, also: http://www.EDPubs.gov or at
that programming captioned under this recognized Indian tribes. its e-mail address: edpubs@inet.ed.gov.
project would not otherwise be If you request an application package
captioned to meet the FCC’s captioning Note: The regulations in 34 CFR part 86 from ED Pubs, be sure to identify this
requirements, or are specifically exempt apply to institutions of higher education competition as follows: CFDA number
from the FCC’s captioning requirements; (IHEs) only. 84.327C.
and Individuals with disabilities can
(j) Budget for the project director to II. Award Information obtain a copy of the application package
attend an annual three-day Project Type of Award: Discretionary grants. in an accessible format (e.g., braille,
Directors’ meeting in Washington, DC, Estimated Available Funds: large print, audiotape, or computer
and another annual two-day trip to $2,500,000. diskette) by contacting the person or
Washington, DC to collaborate with the Estimated Range of Awards: team listed under Accessible Format in
Federal project officer and the other $400,000–$500,000. section VIII of this notice.
projects funded under this priority to Estimated Average Size of Awards: 2. Content and Form of Application
share information, and to discuss $450,000. Submission: Requirements concerning
findings and methods of dissemination. Maximum Award: We will reject any the content of an application, together
Programmatic and Administrative application that proposes a budget with the forms you must submit, are in
Requirements. In addition, projects exceeding $500,000 for a single budget the application package for this
must— period of 12 months. The Assistant competition.
(a) Establish a diverse consumer Secretary for Special Education and Page Limit: The application narrative
advisory group that includes Rehabilitative Services may change the (Part III of the application) is where you,
individuals with vision or hearing loss, maximum amount through a notice the applicant, address the selection
parents of children with disabilities, published in the Federal Register. criteria that reviewers use to evaluate
educators, and individuals from under- Estimated Number of Awards: 5. your application. You must limit Part III
represented groups. This group must to the equivalent of no more than 50
Note: The Department is not bound by any
convene at least annually for the estimates in this notice. pages, using the following standards:
purpose of certifying that each program • A ‘‘page’’ is 8.5″ x 11″, on one side
to be video described or video described Project Period: Up to 60 months. only, with 1″ margins at the top, bottom,
and captioned with project funds is of III. Eligibility Information and both sides.
high educational value and is • Double space (no more than three
appropriate for use in a preschool, 1. Eligible Applicants: State lines per vertical inch) all text in the
elementary, or secondary level educational agencies (SEAs); local application narrative, including titles,
classroom for children with disabilities, educational agencies (LEAs); public headings, footnotes, quotations,
taking into account the educational charter schools that are LEAs under references, and captions, as well as all
needs, including the intellectual, State law; IHEs; other public agencies; text in charts, tables, figures, and
cognitive, social and emotional needs, private nonprofit organizations; outlying graphs.
of children; areas; freely associated States; Indian • Use a font that is either 12 point or
(b) Implement procedures for tribes or tribal organizations; and for- larger or no smaller than 10 pitch
monitoring the extent to which the profit organizations. (characters per inch).
quality of the captions and video 2. Cost Sharing or Matching: This • Use one of the following fonts:
descriptions developed under this competition does not require cost Times New Roman, Courier, Courier
project increase the availability and sharing or matching. New, or Arial. An application submitted
usefulness of the television program for 3. Other: General Requirements—(a) in any other font (including Times
children with disabilities, and use this The projects funded under this Roman or Arial Narrow) will not be
information to make refinements in competition must make positive efforts accepted.] [Please include the bracketed
project operations; and to employ and advance in employment language or similar language only if it is
(c) If the project maintains a Web site, qualified individuals with disabilities accurate.]
include relevant information and (see section 606 of IDEA). The page limit does not apply to Part
documents in a format that meets a (b) Applicants and grant recipients I, the cover sheet; Part II, the budget
government or industry-recognized funded under this competition must section, including the narrative budget
standard for accessibility. involve individuals with disabilities or justification; Part IV, the assurances and
Waiver of Proposed Rulemaking: parents of individuals with disabilities certifications; or the one-page abstract,
Under the Administrative Procedure Act ages birth through 26 in planning, the résumés, the bibliography, the
(APA) (5 U.S.C. 553) the Department implementing, and evaluating the references, or the letters of support.
generally offers interested parties the projects (see section 682(a)(1)(A) of However, the page limit does apply to
opportunity to comment on proposed IDEA). all of the application narrative section
priorities and requirements. Section IV. Application and Submission (Part III).
681(d) of IDEA, however, makes the We will reject your application if you
Information
public comment requirements of the exceed the page limit; or if you apply
APA inapplicable to the priority in this 1. Address to Request Application other standards and exceed the
notice. Package: Education Publications Center equivalent of the page limit.
Program Authority: 20 U.S.C. 1474 (ED Pubs), U.S. Department of 3. Submission Dates and Times:
and 1481(d). Education, P.O. Box 22207, Alexandria, Applications Available: June 2, 2010.
Applicable Regulations: The VA 22304. Telephone, toll free: 1–877– Deadline for Transmittal of
Education Department General 433–7827. FAX: (703) 605–6794. If you Applications: July 19, 2010.
Applications for grants under this please allow 2–5 weeks for your TIN to SF 424, Budget Information—Non-
competition may be submitted become active. Construction Programs (ED 524), and all
electronically using the Electronic Grant The CCR registration process may take necessary assurances and certifications.
Application System (e-Application) five or more business days to complete. You must attach any narrative sections
accessible through the Department’s e- If you are currently registered with the of your application as files in a .DOC
Grants site, or in paper format by mail CCR, you may not need to make any (document), .RTF (rich text), or .PDF
or hand delivery. For information changes. However, please make certain (Portable Document) format. If you
(including dates and times) about how that the TIN associated with your DUNS upload a file type other than the three
to submit your application number is correct. Also note that you file types specified in this paragraph or
electronically, or in paper format by will need to update your CCR submit a password protected file, we
mail or hand delivery, please refer to registration on an annual basis. This will not review that material.
section IV. 7. Other Submission may take three or more business days to • Your electronic application must
Requirements of this notice. complete. comply with any page limit
We do not consider an application 7. Other Submission Requirements: requirements described in this notice.
that does not comply with the deadline Applications for grants under this • Prior to submitting your electronic
requirements. competition may be submitted application, you may wish to print a
Individuals with disabilities who electronically or in paper format by mail copy of it for your records.
need an accommodation or auxiliary aid or hand delivery. • After you electronically submit
in connection with the application a. Electronic Submission of your application, you will receive an
process should contact the person listed Applications. automatic acknowledgment that will
under FOR FURTHER INFORMATION If you choose to submit your include a PR/Award number (an
CONTACT in section VII of this notice. If application to us electronically, you identifying number unique to your
the Department provides an must use e-Application, accessible application).
accommodation or auxiliary aid to an through the Department’s e-Grants Web • Within three working days after
individual with a disability in site at: http://e-grants.ed.gov. submitting your electronic application,
connection with the application While completing your electronic fax a signed copy of the SF 424 to the
process, the individual’s application application, you will be entering data Application Control Center after
remains subject to all other online that will be saved into a following these steps:
requirements and limitations in this database. You may not e-mail an (1) Print SF 424 from e-Application.
notice. electronic copy of a grant application to (2) The applicant’s Authorizing
us. Representative must sign this form.
Deadline for Intergovernmental
Please note the following: (3) Place the PR/Award number in the
Review: September 15, 2010. • Your participation in e-Application upper right hand corner of the hard-
4. Intergovernmental Review: This is voluntary. copy signature page of the SF 424.
program is subject to Executive Order • You must complete the electronic (4) Fax the signed SF 424 to the
12372 and the regulations in 34 CFR submission of your grant application by Application Control Center at (202)
part 79. Information about 4:30 p.m., Washington, DC time, on the 245–6272.
Intergovernmental Review of Federal application deadline date. E- • We may request that you provide us
Programs under Executive Order 12372 Application will not accept an original signatures on other forms at a
is in the application package for this application for this competition after later date.
competition. 4:30 p.m., Washington, DC time, on the Application Deadline Date Extension
5. Funding Restrictions: We reference application deadline date. Therefore, we in Case of System Unavailability: If you
regulations outlining funding strongly recommend that you do not are prevented from electronically
restrictions in the Applicable wait until the application deadline date submitting your application on the
Regulations section of this notice. to begin the application process. application deadline date because e-
6. Data Universal Numbering System • The hours of operation of the e- Application is unavailable, we will
Number, Taxpayer Identification Grants Web site are 6:00 a.m. Monday grant you an extension of one business
Number, and Central Contractor until 7:00 p.m. Wednesday; and 6:00 day to enable you to transmit your
Registry: To do business with the a.m. Thursday until 8:00 p.m. Sunday, application electronically, by mail, or by
Department of Education (1) you must Washington, DC time. Please note that, hand delivery. We will grant this
have a Data Universal Numbering because of maintenance, the system is extension if—
System (DUNS) number and a Taxpayer unavailable between 8:00 p.m. on (1) You are a registered user of e-
Identification Number (TIN); (2) you Sundays and 6:00 a.m. on Mondays, and Application and you have initiated an
must register both of those numbers between 7:00 p.m. on Wednesdays and electronic application for this
with the Central Contractor Registry 6:00 a.m. on Thursdays, Washington, competition; and
(CCR), the Government’s primary DC time. Any modifications to these (2) (a) E-Application is unavailable for
registrant database; and (3) you must hours are posted on the e-Grants Web 60 minutes or more between the hours
provide those same numbers on your site. of 8:30 a.m. and 3:30 p.m., Washington,
application. • You will not receive additional DC time, on the application deadline
You can obtain a DUNS number from point value because you submit your date; or
Dun and Bradstreet. A DUNS number application in electronic format, nor (b) E-Application is unavailable for
can be created within one business day. will we penalize you if you submit your any period of time between 3:30 p.m.
If you are a corporate entity, agency, application in paper format. and 4:30 p.m., Washington, DC time, on
institution, or organization, you can • You must submit all documents the application deadline date.
obtain a TIN from the Internal Revenue electronically, including all information We must acknowledge and confirm
Service. If you are an individual, you you typically provide on the following these periods of unavailability before
can obtain a TIN from the Internal forms: The Application for Federal granting you an extension. To request
Revenue Service or the Social Security Assistance (SF 424), the Department of this extension or to confirm our
Administration. If you need a new TIN, Education Supplemental Information for acknowledgment of any system
unavailability, you may contact either application by hand, on or before the VI. Award Administration Information
(1) the person listed elsewhere in this application deadline date, to the 1. Award Notices: If your application
notice under FOR FURTHER INFORMATION Department at the following address: is successful, we notify your U.S.
CONTACT (see VII. Agency Contact) or (2) U.S. Department of Education, Representative and U.S. Senators and
the e-Grants help desk at 1–888–336– Application Control Center, Attention: send you a Grant Award Notification
8930. If e-Application is unavailable (CFDA Number 84.327C) 550 12th (GAN). We may notify you informally,
due to technical problems with the Street, SW., Room 7041, Potomac Center also.
system and, therefore, the application Plaza, Washington, DC 20202–4260. If your application is not evaluated or
deadline is extended, an e-mail will be The Application Control Center not selected for funding, we notify you.
sent to all registered users who have accepts hand deliveries daily between 2. Administrative and National Policy
initiated an e-Application. 8:00 a.m. and 4:30 p.m., Washington, Requirements: We identify
Extensions referred to in this section DC time, except Saturdays, Sundays, administrative and national policy
apply only to the unavailability of e- and Federal holidays. requirements in the application package
Application. If e-Application is Note for Mail or Hand Delivery of Paper and reference these and other
available, and, for any reason, you are Applications: If you mail or hand deliver requirements in the Applicable
unable to submit your application your application to the Department— Regulations section of this notice.
electronically or you do not receive an (1) You must indicate on the envelope We reference the regulations outlining
automatic acknowledgment of your and—if not provided by the Department—in the terms and conditions of an award in
submission, you may submit your Item 11 of the SF 424 the CFDA number, the Applicable Regulations section of
application in paper format by mail or including suffix letter, if any, of the
competition under which you are submitting
this notice and include these and other
hand delivery in accordance with the specific conditions in the GAN. The
your application; and
instructions in this notice. GAN also incorporates your approved
(2) The Application Control Center will
b. Submission of Paper Applications mail to you a notification of receipt of your application as part of your binding
by Mail. grant application. If you do not receive this commitments under the grant.
If you submit your application in grant notification within 15 business days 3. Reporting: At the end of your
paper format by mail (through the U.S. from the application deadline date, you project period, you must submit a final
Postal Service or a commercial carrier), should call the U.S. Department of Education performance report, including financial
you must mail the original and two Application Control Center at (202) 245– information, as directed by the
copies of your application, on or before 6288.
Secretary. If you receive a multi-year
the application deadline date, to the award, you must submit an annual
Department at the following address: V. Application Review Information
performance report that provides the
U.S. Department of Education, 1. Selection Criteria: The selection most current performance and financial
Application Control Center, Attention: criteria for this program are from 34 CFR expenditure information as directed by
(CFDA Number 84.327C) LBJ Basement 75.210 and are listed in the application the Secretary under 34 CFR 75.118. The
Level 1, 400 Maryland Avenue, SW., package. Secretary may also require more
Washington, DC 20202–4260. 2. Review and Selection Process: In frequent performance reports under 34
You must show proof of mailing the past, the Department has had CFR 75.720(c). For specific
consisting of one of the following: difficulty finding peer reviewers for requirements on reporting, please go to
(1) A legibly dated U.S. Postal Service certain competitions, because so many http://www.ed.gov/fund/grant/apply/
postmark. individuals who are eligible to serve as appforms/appforms.html.
(2) A legible mail receipt with the peer reviewers have conflicts of interest. 4. Performance Measures: Under the
date of mailing stamped by the U.S. The Standing Panel requirements under Government Performance and Results
Postal Service. IDEA also have placed additional Act of 1993 (GPRA), the Department has
(3) A dated shipping label, invoice, or constraints on the availability of established a set of performance
receipt from a commercial carrier. reviewers. Therefore, the Department measures, including long-term
(4) Any other proof of mailing has determined that, for some measures, that are designed to yield
acceptable to the Secretary of the U.S. discretionary grant competitions, information on various aspects of the
Department of Education. applications may be separated into two effectiveness and quality of the
If you mail your application through or more groups and ranked and selected Technology and Media Services for
the U.S. Postal Service, we do not for funding within specific groups. This Individuals with Disabilities program.
accept either of the following as proof procedure will make it easier for the These measures focus on the extent to
of mailing: Department to find peer reviewers, by which projects are of high quality, are
(1) A private metered postmark. ensuring that greater numbers of relevant to improving outcomes of
(2) A mail receipt that is not dated by individuals who are eligible to serve as children with disabilities, and
the U.S. Postal Service. reviewers for any particular group of contribute to improving outcomes for
If your application is postmarked after applicants will not have conflicts of children with disabilities. We will
the application deadline date, we will interest. It also will increase the quality, collect data on these measures from the
not consider your application. independence, and fairness of the projects funded under this competition.
Note: The U.S. Postal Service does not review process, while permitting panel Grantees will be required to report
uniformly provide a dated postmark. Before members to review applications under information on their projects’
relying on this method, you should check discretionary grant competitions for performance in their annual
with your local post office. which they also have submitted performance reports to the Department
c. Submission of Paper Applications applications. However, if the (34 CFR 75.590).
by Hand Delivery. Department decides to select an equal VII. Agency Contact
If you submit your application in number of applications in each group
paper format by hand delivery, you (or for funding, this may result in different FOR FURTHER INFORMATION CONTACT: Jo
a courier service) must deliver the cut-off points for fundable applications Ann McCann, U.S. Department of
original and two copies of your in each group. Education, 400 Maryland Avenue, SW.,
room 4076, Potomac Center Plaza (PCP), which is supported with Impact Aid its review of the Poplar District’s waiver
Washington, DC 20202–2550. funds appropriated under the ARRA. request, there do not appear to be U.S.-
Telephone: (202) 245–7434. SUPPLEMENTARY INFORMATION: The manufactured T8 4-foot electronic
If you use a TDD, call the Federal Department provided Poplar District ballasts available to the Poplar District
Relay Service (FRS), toll free, at 1–800– with an Impact Aid ARRA formula grant for the ARRA-funded lighting project.
877–8339. for school construction activities Furthermore, the purpose of the
authorized under section 8007(a) of the ARRA is to stimulate economic
VIII. Other Information recovery, in part, by funding current
Elementary and Secondary Education
Accessible Format: Individuals with Act of 1965, as amended. The Poplar infrastructure construction, and not to
disabilities can obtain this document District proposes to use these funds for delay projects that are ‘‘shovel ready’’ by
and a copy of the application package in a lighting project, but reports that the requiring the revision of standards and
an accessible format (e.g., braille, large particular lights needed (T8 4-foot specifications or a new bidding process.
print, audiotape, or computer diskette) electronic ballasts) for this construction The imposition of the Buy American
by contacting the Grants and Contracts project are not produced in the United Requirements on such otherwise eligible
Services Team, U.S. Department of States. projects would result in unreasonable
Education, 400 Maryland Avenue, SW., In accordance with section 1605(c) of delay, and to further delay construction
room 5075, PCP, Washington, DC the ARRA, the Department hereby would be in direct conflict with a
20202–2550. Telephone: (202) 245– provides notice that it is granting a fundamental economic purpose of the
7363. If you use a TDD, call the FRS, toll waiver of the Buy American ARRA, which is to create or retain jobs.
free, at 1–800–877–8339. Requirements for the Poplar District’s The Department has reviewed the
Electronic Access to This Document: lighting project. This notice constitutes Poplar District’s waiver request and has
You can view this document, as well as the detailed written justification that the determined that the supporting
all other documents of this Department Department is required to publish in documentation is sufficient to
published in the Federal Register, in instances when it grants such a waiver demonstrate that a waiver is justified
text or Adobe Portable Document pursuant to section 1605(b) of the under section 1605(b)(2) of the ARRA.
Format (PDF) on the Internet at the ARRA. Having established both a proper basis
following site: http://www.ed.gov/ Section 1605(a) of the ARRA requires to specify the particular good required
news/fedregister. To use PDF you must that none of the appropriated funds be for this project, and that this
have Adobe Acrobat Reader, which is used for the construction, alteration, manufactured good is not available from
available free at this site. maintenance, or repair of a public a producer in the United States, the
Note: The official version of this document building or public work unless all of the Poplar District is hereby granted a
is the document published in the Federal iron, steel, and manufactured goods waiver from the Buy American
Register. Free Internet access to the official used in the project are produced in the Requirements reflected in section
edition of the Federal Register and the Code United States. The ARRA further 1605(a) of the ARRA for the purchase of
of Federal Regulations is available on GPO provides that this requirement does not T8 4-foot electronic ballasts using ARRA
Access at: http://www.gpoaccess.gov/nara/ apply, and that a waiver may be granted, funds as specified in the Poplar
index.html. when the head of the Federal District’s request.
Dated: May 26, 2010. department or agency involved finds FOR FURTHER INFORMATION CONTACT:
that: (1) Applying these requirements Kristen Walls-Rivas, Impact Aid
Alexa Posny,
would be inconsistent with the public Program, U.S. Department of Education,
Assistant Secretary for Special Education and
interest; (2) iron, steel, and relevant 400 Maryland Avenue, SW.,
Rehabilitative Services.
manufactured goods are not produced in Washington, DC 20202. Telephone:
[FR Doc. 2010–13143 Filed 6–1–10; 8:45 am]
the United States in sufficient and (202) 260–1357 or via Internet:
reasonably available quantities and of a Kristen.Walls-Rivas@ed.gov.
satisfactory quality; or (3) inclusion of If you use a telecommunications
iron, steel, and relevant manufactured device for the deaf (TDD), call the
DEPARTMENT OF EDUCATION
goods produced in the United States Federal Relay Service (FRS), toll free, at
Notice of a Waiver of Section 1605 of will increase the overall cost of the 1–800–877–8339. Individuals with
the American Recovery and project by more than 25 percent. disabilities can obtain this document in
Reinvestment Act of 2009 (ARRA) for The Secretary has determined that a an accessible format (e.g., braille, large
Poplar School District, Poplar, MT section 1605(b) waiver of the Buy print, audiotape, or computer diskette)
American Requirements is appropriate on request to the program contact
ACTION: Notice of a Waiver of Section for the Poplar District’s lighting project person listed in this section.
1605 of the American Recovery and because, based on the Department’s Electronic Access to This Document:
Reinvestment Act of 2009 (ARRA) for research, the particular lights needed for You may view this document, as well as
Poplar School District, Poplar, Montana. this project are not manufactured in the all other documents of this Department
United States. The Department bases published in the Federal Register, in
SUMMARY: In this notice, the Department this determination on information text or Adobe Portable Document
of Education (the Department) provided by the Poplar District as well Format (PDF) on the Internet at the
announces its waiver of the Buy as the Department’s own research. The following site: http://www.ed.gov/news/
American requirements in section Poplar District has provided information fedregister. To use PDF you must have
1605(a) of the ARRA (Buy American to the Department documenting that Adobe Acrobat Reader, which is
Requirements) for the Poplar School there are no T8 4-foot electronic ballast available free at this site.
District in Poplar, Montana (Poplar manufacturers in the United States. In Note: The official version of this document
District) and the justification for this addition, based on the Department’s is the document published in the Federal
waiver. This waiver permits use of own research (Internet product Register. Free Internet access to the official
imported T8 4-foot electronic ballasts in literature searches) and to the best of the edition of the Federal Register and the Code
the Poplar District’s lighting project, Department’s knowledge at the time of of Federal Regulations is available on GPO
Access at: http://www.gpoaccess.gov/nara/ technologies used to generate electricity Displays and other information about
index.html. from fossil fuels, including natural gas. DOE’s proposed action and Summit’s
Summit proposes to build its IGCC project will be available, and
Authority: Section 1605 of the American plant adjacent to an oil field in Ector
Recovery and Reinvestment Act, Public Law representatives from DOE and Summit
111–5. County, Texas. The plant would use will be present at the informal session
coal as its feedstock. It would capture, to discuss the proposed project, DOE’s
Dated: May 28, 2010. in the form of CO2, about 90% of the CCPI program, and the EIS process.
Arne Duncan, carbon in the portion of its coal fuel
Secretary of Education. ADDRESSES: Written comments on the
supply used for power production. The
[FR Doc. 2010–13308 Filed 6–1–10; 8:45 am] plant would employ two gasifiers, scope of the EIS and requests to
feeding a single, combined-cycle power participate in the public scoping
island to generate about 400 MW (gross) meeting should be addressed to: Mr.
of electricity, with the co-production of Mark L. McKoy, U.S. Department of
DEPARTMENT OF ENERGY sulfuric acid and urea (for fertilizer) or Energy, National Energy Technology
other chemicals. About 275 MW of Laboratory, 3610 Collins Ferry Road,
Notice of Intent To Prepare an electricity would be put onto the power P.O. Box 880, Morgantown, WV 26507–
Environmental Impact Statement for grid, with the remaining power used for 0880. Individuals and organizations
Texas Clean Energy Project, Ector commercial loads on the project site, who would like to provide oral or
County, TX such as urea production and CO2 electronic comments, or request copies
compression. During DOE of the Draft EIS, should contact Mr.
AGENCY: Department of Energy. McKoy by telephone (304–285–4426),
ACTION: Notice of Intent To Prepare An demonstration phase of the project, it
would permanently sequester CO2 at a toll-free telephone (1–800–432–8330
Environmental Impact Statement. (ext. 4426), fax (304–285–4403), e-mail
maximum rate of about 3 million tons
per year by piping it to Permian Basin (Summit.EIS@netl.doe.gov), or formal
SUMMARY: The U.S. Department of
oil fields, where it would be used by mail submitted to the address given
Energy (DOE or Department) announces
field operators for enhanced oil recovery above.
its intent to prepare an Environmental
Impact Statement (EIS) pursuant to the (EOR). Summit is owned jointly by the FOR FURTHER INFORMATION CONTACT: For
National Environmental Policy Act Summit Power Group, Inc. and CW further information about this project,
(NEPA), the Council on Environmental NextGen, Inc. (CWNI), a Clayton contact Mr. Mark L. McKoy, as
Quality (CEQ) NEPA regulations (40 Williams company. The project team described above. For general
CFR parts 1500–1508), and DOE NEPA includes Summit Power Group, Inc.; information on the DOE NEPA process,
implementing procedures (10 CFR part Blue Source, LLC; Siemens, AG; and please contact Ms. Carol M. Borgstrom,
1021), to assess the potential CWNI; among others. Director, Office of NEPA Policy and
environmental impacts for the proposed DOE issues this Notice of Intent (NOI) Compliance (GC–54), U.S. Department
action of providing Federal funding for to inform interested parties of the of Energy, 1000 Independence Avenue,
the proposed Texas Clean Energy pending EIS and to invite public SW., Washington, DC 20585–0103;
Project (TCEP) near Odessa, Texas. The comments on the proposed action, telephone: 202–586–4600; fax: 202–
project would comprise planning, including: (1) The proposed plans for 586–7031; or leave a toll-free message at
design, construction and operation by implementing the project, (2) the range 1–800–472–2756.
Summit Texas Clean Energy, LLC of environmental issues and alternatives
to be analyzed, and (3) the analysis SUPPLEMENTARY INFORMATION:
(Summit) of a coal-fueled electric power
and chemicals production plant methods to be used or considered Background
integrated with carbon dioxide (CO2) during preparation of the EIS.
capture and geologic sequestration. DOE DATES: DOE invites comments on the Since the early 1970s, DOE and its
selected this project for an award of proposed scope and content of the EIS predecessor agencies have pursued
financial assistance through a from all interested parties. Comments research and development programs
competitive process under the Clean must be received by July 2, 2010, to that include large, technically complex
Coal Power Initiative (CCPI) program ensure consideration. Late comments projects in pursuit of innovation in a
(Round 3). will be considered to the extent wide variety of coal technologies
The EIS (DOE/EIS–0444) will inform practicable. In addition to accepting through the proof-of-concept stage.
DOE’s decision on whether to provide comments in writing (formal letters, However, helping a technology reach
financial assistance under its CCPI faxes and e-mails) and by telephone the proof-of-concept stage does not
program. DOE proposes to provide (See ADDRESSES below), DOE will ensure its continued development or
Summit with approximately $350 conduct a public scoping meeting in commercialization. Before a technology
million in funding for this project, which government agencies, private- can be considered seriously for
which would demonstrate the full sector organizations, and the general commercialization, it must be
integration of CO2 capture and public are invited to present oral demonstrated at a sufficient scale to
sequestration with a commercial, comments or suggestions with regard to prove its reliability and economically
integrated gasification combined-cycle the alternatives and issues to be competitive performance. The financial
(IGCC) poly-generation (electricity and considered in the EIS. The scoping risk associated with such large-scale
chemicals) plant. DOE’s contribution of meeting will be held beginning at 7 p.m. demonstration projects is often too high
$350 million would constitute about 20 on Thursday, June 17, 2010, in the for the private sector to assume in the
percent of the estimated total Saulsbury Meeting Room of the absence of strong incentives.
development and capital cost of the Electronics Technology Building at The CCPI program was established in
project, which is estimated to be $1.73 Odessa College, 201 West University 2002 as a government and private sector
billion (2009 dollars). TCEP would Blvd, Odessa, Texas 79764. The public partnership to implement the
employ advanced clean coal is also invited to learn more about the recommendation in President Bush’s
technologies to reduce the levels of CO2 proposed project at an informal session National Energy Policy to increase
emissions below that of conventional at this location beginning at 4 p.m. investment in clean coal technology.
Through cooperative agreements with pipelines (with the construction of short electricity that can be generated from a
its private sector partners, the program new connector pipelines) where the CO2 quantity of coal. Both turbines would
advances clean coal technologies to could be used in EOR operations. Most generate electricity for sale, with a part
commercialization; these technologies likely, CO2 would be transported in an of the electricity diverted to service
often involve combustion existing regional CO2 pipeline network. other parts of the poly-generation plant
improvements, control system advances, A short, approximately two-mile, new and on-site commercial loads. At full
gasifier designs, pollution reductions CO2 pipeline could connect the power capacity, the plant would be expected to
(including greenhouse gas reduction), plant site to the nearest existing trunk use about 5,800 tons of low-sulfur coal
efficiency increases, fuel processing pipeline. per day (about 1.9 to 2.0 million tons
techniques and other improvements. per year). Coal would be delivered by
Proposed Plant
Congress established criteria for railroad trains from the Powder River
projects receiving financial assistance Summit would construct an IGCC Basin and would be bought through
under this program in Title IV of the poly-generation plant that is designed to contracts on the open market.
Energy Policy Act of 2005 (Pub. L. 109– capture approximately 90 percent of its The plant would minimize emissions
58) (EPACT 2005). Under this statute, CO2, and sequester it through use in of sulfur oxides, nitrogen oxides,
CCPI projects must ‘‘advance efficiency, EOR operations. Summit, or another mercury, and particulates as compared
environmental performance and cost entity, would operate the plant to to conventional coal-fueled power
competitiveness well beyond the level demonstrate the commercial feasibility plants. In compliance with Texas House
of technologies that are in commercial of a fully integrated, coal-fueled 400 Bill 469, the project would be required
service’’ (Pub. L. 109–58, Sec. 402(a)). In MW-equivalent generating unit that to meet stringent emissions limits: 0.034
February 2009, the American Recovery would produce 275 MW of electricity pounds of NOX per million BTUs, 0.04
and Reinvestment Act of 2009 (Pub. L. for the power grid (with additional pounds of SOX per million BTUs, 95
111–5, 123 Stat. 115 (Feb. 17, 2009)) amounts for on-site commercial loads percent reduction in mercury emissions,
(ARRA) appropriated $3.4 billion to and plant use) plus sulfuric acid, urea and 0.015 pounds of particulates per
DOE for ‘‘Fossil Energy Research and and perhaps other chemicals such as million BTUs. The project’s air permit
Development;’’ the Department intends ammonia, methanol or substitute application with the Texas Commission
to use a significant portion of these natural gas. Following the on Environmental Quality (TCEQ)
funds to provide financial assistance to demonstration phase, the project would includes even lower emissions limits
CCPI projects. continue long-term commercial than those required by HB 469.
operations with continuing sales of Emissions of carbon monoxide and
Purpose and Need for Agency Action power, urea, captured CO2 and other volatile organic compounds would be
The purpose and need for the DOE chemical products. controlled.
action are to advance the CCPI program The new plant would consist of two Steam from the gasification and
by funding projects that have the best gasifiers, a gas processing and cleanup syngas processing could be condensed,
chance of achieving the program’s system, a syngas-fueled combustion treated, and recycled into the gasifier or
objectives as established by Congress: turbine, a heat-recovery steam generator, added to the plant’s cooling water
the commercialization of clean coal a steam turbine, a sulfur recovery plant, circuit. Slag from the gasifiers would be
technologies that advance efficiency, a chemicals production plant, and sold for beneficial uses. Other solid
environmental performance, and cost associated facilities. The system is materials generated by the various plant
designed with duplicate, over-sized processes would be accumulated on site
competitiveness well beyond the level
gasifiers to ensure full-time availability and made available for beneficial use,
of technologies that are currently in
of syngas production, with sufficient recycling or, if these options are not
commercial service.
supply for both the production of available, disposed of in accordance
Summit’s Proposed Project electricity (more than 75 percent) and with applicable laws.
chemicals (less than 25 percent). The chemical plant would use the
Site of Proposed Project: Penwell, Texas The plant proposed by Summit would Haber process to convert syngas into
The proposed site is located on 600 gasify coal to produce ‘‘synthesis gas’’ ammonia and the Bosch-Meiser process
acres, approximately 15 miles southwest (or ‘‘syngas’’—mostly carbon monoxide to convert ammonia into urea for
of the city of Odessa in Ector County, (CO), hydrogen gas (H2), CO2 and fertilizer. With equipment additions or
Texas. The site is on flat land north of steam), which would be processed to changes, other chemicals could be
the town of Penwell and Interstate increase the H2 content (by converting produced.
Highway I–20. The proposed power CO and H2O into H2 plus CO2) and Other notable equipment would
plant property is arid, non-arable brush cleaned of particulates and acid gases to include coal storage facilities, a coal
(mesquite-lotebush-juniper) and range produce a H2-rich, carbon-lean fuel. The preparation plant and coal feed system,
land. Surrounding areas are or were H2-rich fuel would power the gas air separators, stacks, mechanical draft
used primarily for ranching to the north combustion turbine, and CO2 emissions cooling tower (dry cooling is planned
and east and oil production to the west would be minimal (only a fraction of for the power generation facilities and
and south, with some scattered those of a natural gas power plant) as a wet cooling for other portions of the
industrial facilities (quarry, cement result of the hydrogen-rich, carbon-lean plant), a unit for converting captured
plant, etc.) within sight to the east and fuel. Hot exhaust gas from the gas sulfur dioxide into sulfuric acid for sale
south. There is an extensive junk yard combustion turbine would generate on the market, and a particulate
of abandoned oil and gas equipment steam from water in the heat recovery filtration system. The height of the
along the site’s southern border, on the steam generator to drive the steam tallest proposed stack would be
other side of a railroad. The site has turbine. Using a heat recovery steam approximately 140 feet above ground
access to coal delivery via rail along the generator and a steam turbine to capture level. Additionally, the plant would
southern border of the property, and it energy from the exhaust gases of the require the construction of a railroad
connects to I–20 via Farm-to-Market combustion turbine is the essence of the loop, coal unloading facilities, ash/slag
Road 1601. There are numerous oil combined-cycle approach and increases handling facilities, access roads,
fields within reach of existing CO2 both efficiency and the total amount of administration buildings, water and
waste water treatment facilities, and a sequester about 3 million tons of CO2 facilities, including the capture and sale
waste water disposal well. An per year by transporting it in pipelines of CO2, would be expected to continue
underpass may be constructed beneath to oil fields in the Permian Basin of west for 30 to 50 years. Summit plans to start
the adjoining railroad. Texas for use in EOR operations. These construction during 2011 and
fields are well characterized, and some commercial operations (demonstration
Proposed Linear Facilities
already make extensive use of CO2 for phase) by late 2014. The schedule is
Linear facilities are the power EOR. As a consequence of EOR contingent upon Summit receiving the
transmission lines and pipelines that operations, most of the captured CO2 necessary permits (which would be
convey electricity and materials to and (more than 99 percent) would be preceded by hearings, public comment
from the plant. Electricity could be sequestered in deep underground opportunities and other events
conveyed to regional 345 kV geologic formations that would be
transmission lines via an approved mandated by applicable regulations and
monitored to verify the quantity and agency procedures) and financial
ERCOT (Electric Reliability Council of permanence of CO2 storage. The use of
Texas) grid extension but could also be closing on all the necessary funding
CO2 in this manner would continue the
transmitted via local interconnects with sources, including DOE’s financial
existing uses of the subject fields,
either of two 138 kV transmission lines, namely enhanced oil production using assistance. DOE’s decision to provide
one located approximately 0.7 miles to CO2. financial assistance for detailed design,
the north and the other located 1.8 miles The EOR process involves the procurement of expensive equipment,
to the south. Rights-of-ways (ROWs) repeated injection of CO2 to reduce the construction, and operations will be
would be approximately 200 ft wide. An oil’s viscosity and to move it through informed by the NEPA process.
electrical substation would be the reservoir. During EOR operations, Connected and Cumulative Actions
constructed to facilitate the connection pore space left by the extracted oil is
to the grid. occupied by the injected CO2, Under the cooperative agreement
Process water would be obtained from sequestering it in the geologic between DOE and Summit, DOE would
local wastewater treatment facilities formation. Reservoirs are not over- share in the cost of the power and
(using effluent from the Gulf Coast pressurized from CO2 for EOR chemical plant, supporting facilities and
Authority, the City of Odessa, and/or operations, because fluid volumes are site infrastructure (including that
the City of Midland) or from a re- removed from the reservoirs in amounts required for sequestration monitoring,
charging aquifer in the region. Other corresponding to those injected in the verification and accounting (MVA), and
water supply options may be considered reservoirs. the costs associated with implementing
during the project planning. The water and documenting the results of the
Summit’s Technology Alternatives
would be conveyed by one or more new
Summit has proposed to use Siemens demonstration test plan during the
pipelines constructed on a combination
SFG–500 gasifiers and a Siemens F-class demonstration phase). Under this
of existing and new ROWs over
combined-cycle power island. As plans agreement, DOE would not share in the
distances ranging between about 10
miles and 54 miles. progress, Summit will make a final costs of normal plant operations during
Wastewater would be processed in a selection of air separation technology, the demonstration phase. For activities
new on-site wastewater treatment plant. water/gas shift reactor technology, acid that would not occur if not for this
The plant would be designed for zero gas removal system technology (for project, DOE will consider these as
liquid discharge. capturing both CO2 and acid gases, such connected actions and will evaluate
Natural gas, which would be used to as H2S), sulfur recovery technology (e.g., them in the EIS.
start the plant, would be obtained from Claus process), and urea production DOE will consider the cumulative
an existing pipeline that traverses the technology (e.g., combination of the impacts of both the cost-shared
proposed project site or from a gas line Haber ammonia production process and activities and other activities, along
located either to the north or to the Bosch-Meiser urea production process). with any other connected actions,
south of the site. Natural gas also may Summit has proposed to use only including those of third parties.
be used to fuel the power island commercially proven, fully warranted Cumulative impacts analysis will
initially, while the remainder of the equipment to reduce risks and costs. include the analysis of pollutant
plant is under construction. The technological advancement is in the emissions (including greenhouse gas
The plant may deliver its CO2 to the integration of all these components. A emissions) and other incremental
existing Central Basin CO2 pipeline, competitive process would be used to
impacts that, when added to past,
which is less than two miles to the east select vendors and manufacturers (other
present and reasonably foreseeable
of the proposed plant site. In this than for the Siemens-supplied
future impacts, may have significant
option, a short new pipeline would be equipment). A wide variety of chemicals
effects on the human environment. DOE
constructed eastwards along new ROW. could be produced, depending on
will not consider impacts associated
Alternatively, new pipelines could be chemical processing equipment
constructed to either existing oil fields installed. Current plans indicate market with the purchase of commodities (such
or to other existing pipelines. New viability for the production and sale of as coal) on the open market, coal
ROWs would require widths of 100 ft urea (for fertilizer), ammonia, methanol mining, or the transportation of coal as
for construction and approximately 50 ft and substitute natural gas (SNG). a general industrial activity (as
for pipeline operations. Sales and distinguished from the delivery of coal
Proposed Project Schedule to the project site, specifically), given
conveyance options for CO2 are
currently under consideration and The project proposed by Summit these impacts are generally well known
negotiation. includes the planning, design, and would occur regardless of DOE’s
construction, initial start-up, and early decision regarding financial assistance
Proposed Use of CO2 for Enhanced Oil operation of the plant and associated for this project. No coal for this project
Recovery and Sequestration facilities for a period of three years would come from ‘‘mountaintop
During DOE’s demonstration phase of under the DOE demonstration phase. removal’’ forms of mining, which are not
plant operations, the project would Thereafter the plant and associated practiced in the Powder River Basin.
Alternatives, Including the Proposed given to environmental factors. DOE FutureGen (reference: DOE/EIS–0394).
Action will make the synopsis available to the In particular, Summit sought a site
NEPA requires that agencies evaluate public by posting it on NETL’s Web site. where CO2 sales options were readily
the reasonable alternatives to their After DOE selects a project for an available and the market was strong and
proposed action. The purpose and need award, the range of reasonable dependable so that there would be no
alternatives becomes the project as reliance on pending legislation for CO2
for agency action determines the range
proposed by the applicant, any capture and sequestration and no need
of reasonable alternatives. In this case,
alternatives still under consideration by for a long CO2 pipeline that might not
the purpose and need for DOE’s
the applicant or that are reasonable be built. The EIS will briefly describe
proposed action—providing cost-shared
within the confines of the project as Summit’s site selection process.
funding for Summit’s project—is to
proposed (e.g., the particular location of However, DOE does not plan to analyze
advance the CCPI program by funding
the plant on the parcel of land proposed in detail any alternative sites considered
projects that have the best chance of
for the project) and a ‘‘no action’’ and dismissed by Summit because
achieving the program’s objectives as
alternative. Regarding a no action Summit is no longer considering these
established by Congress: The
alternative, DOE assumes for purposes other alternatives and because they were
commercialization of clean coal of the EIS that, if it decides to withhold
technologies that advance efficiency, not part of the proposal that Summit
financial assistance, the project would offered and DOE accepted.
environmental performance, and cost not proceed.
competitiveness well beyond the level DOE currently plans to evaluate the Floodplains and Wetlands
of technologies that are currently in project as proposed by Summit (with
service. The footprint of the proposed plant
and without any mitigating conditions would not affect any wetlands or
DOE’s NEPA regulations include a that DOE may identify as reasonable and
process for identifying and analyzing floodplains. Wetland and floodplain
appropriate); alternatives to Summit’s impacts, if any, from construction of
reasonable alternatives in the context of proposal that it is still considering (e.g.,
providing financial assistance through a pipelines and transmission lines would
water sources, sales options for CO2, be identified during the preparation of
competitive selection of projects and the ROWs for linear facilities); and
proposed by entities outside the federal the EIS and described in the EIS. In the
the no action alternative. DOE and event that the EIS identifies wetlands
government. The range of reasonable Summit will consider other reasonable
alternatives in competitions for grants, and floodplains that would be affected
alternatives suggested during the by the proposed project, including its
loans, loan guarantees, and other scoping period.
financial support is defined initially by linear facilities and connected actions,
Under the no action alternative, DOE
the range of responsive proposals DOE will prepare a floodplain and
would not provide funding to Summit.
received by DOE. Unlike projects wetland assessment in accordance with
In the absence of financial assistance
undertaken by DOE itself, the its regulations at 10 CFR part 1022 and
from DOE, Summit could reasonably
Department cannot mandate what include the assessment in the EIS.
pursue two options. It could build the
outside entities propose, where they project without DOE funding; the Preliminary Identification of
propose their project, or how they impacts of this option would be Environmental Issues
propose to do it, beyond expressing essentially the same as those of DOE’s
basic requirements in the funding DOE intends to address the issues
proposed action, except any DOE-
opportunity announcement; and these required mitigations would not be listed below when considering the
express requirements must be limited to imposed. Or, Summit could choose not potential impacts resulting from the
those that further the program’s to pursue its project, and there would be construction and operation of Summit’s
objectives. DOE’s decision is then no impacts from the project. This latter proposed project and any connected
limited to selecting among the option would not contribute to the goal actions. This list is neither intended to
applications that meet the program’s of the CCPI program, which is to be inclusive nor a predetermined set of
goals. accelerate commercial deployment of potential impacts. DOE invites
Recognizing that the range of advanced coal technologies that provide comments on whether this is the correct
reasonable alternatives in the context of the United States with clean, reliable, list of important issues that should be
financial assistance and contracting is and affordable energy. However, as considered in the EIS. The
determined by the number and nature of required by NEPA, DOE analyzes this environmental issues include:
the proposals received, section 216 of option as the no action alternative for • Air quality impacts: Potential for air
DOE’s NEPA regulations requires the the purpose of making a meaningful emissions during construction and
Department to prepare an comparison between the impacts of DOE operation of the power plant and
‘‘environmental critique’’ that assesses providing financial assistance and appurtenant facilities to impact local
the environmental impacts and issues withholding that assistance. sensitive receptors, local environmental
relating to each of the proposals that the Alternatives considered by Summit in conditions, and special-use areas,
DOE selecting official considers for an developing its proposed project will be including contributions to smog and
award. See 10 CFR 1021.216. This discussed in the EIS. Summit haze, impacts from dust and any
official considers these impacts and considered a number of sites (six in significant vapor plumes, and
issues, along with other aspects of the Texas alone) and determined that the consequences of greenhouse gas
proposals (such as technical merit and only reasonable site for continued emissions;
financial ability) and the program’s consideration is the one at Penwell. • Water resource impacts: Potential
objectives, in making awards. DOE Summit’s consideration included impacts from water utilization and
prepared a critique of the proposals that market opportunities and conditions, evaporation;
were deemed suitable for selection in local infrastructure, physical suitability • Infrastructure and land use impacts:
this round of awards for the CCPI of the sites, and environmental Potential environmental and
program. DOE will prepare an concerns. Two of the sites had already socioeconomic impacts associated with
‘‘environmental synopsis,’’ based on the been environmentally reviewed and the project, including delivery of feed
critique, to document consideration cleared for a very similar project, materials and distribution of products
(e.g., power transmission lines, EIS. The public scoping period will end DEPARTMENT OF ENERGY
pipelines); on July 2, 2010. Interested government
• Visual impacts associated with agencies, private-sector organizations Biomass Research and Development
facility structures: View shed impacts, and individuals are encouraged to Technical Advisory Committee
impacts to scenic views (e.g., impacts submit comments or suggestions
AGENCY: Department of Energy, Office of
caused by the plant structures, water concerning the content of the EIS, issues
Energy Efficiency and Renewable
vapor plumes, flares, power and impacts that should be addressed,
Energy.
transmission lines, pipelines), internal and alternatives that should be
and external perception of the considered. Scoping comments should ACTION: Notice of open meeting.
community or locality; clearly describe specific issues or topics
SUMMARY: This notice announces an
• Solid waste impacts: Pollution that the EIS should address. Written, e-
open meeting of the Biomass Research
prevention and waste management mailed, faxed, or telephoned comments
and Development Technical Advisory
issues (generation, treatment, transport, should be received by July 2, 2010 (see
Committee under Section 9008(d) of the
storage, disposal or use), including the ADDRESSES).
Food, Conservation, and Energy Act of
handling of slag, water treatment sludge, DOE will conduct a public scoping
2008. The Federal Advisory Committee
sulfur by-products, and hazardous meeting beginning at 7 p.m. on
Act (Pub. L. 92–463, 86 Stat. 770)
materials; Thursday, June 17, 2010 in the
• Ecological impacts: Potential on-site requires that agencies publish these
Saulsbury Meeting Room of the
and off-site impacts to vegetation, notices in the Federal Register to allow
Electronics Technology Building at
terrestrial wildlife, aquatic wildlife, for public participation. This notice
Odessa College, 201 West University
threatened or endangered species, and announces the meeting of the Biomass
Blvd., Odessa, Texas 79764. The public
ecologically sensitive habitats; Research and Development Technical
is also invited to learn more about the
• Traffic issues: Potential impacts Advisory Committee.
proposed project at an informal session
from the construction and operation of at this location beginning at 4 p.m. DATES:
the facilities, including changes in local Anyone who wishes to speak at this June 23, 2010; 10:30 a.m. to 3:15 p.m.
traffic patterns, deterioration of roads, public scoping meeting should contact June 24, 2010; 10:30 a.m. to 3 p.m.
traffic hazards, and traffic controls; Mr. Mark L. McKoy, either by phone, ADDRESSES: Hyatt Arlington, 1325
• Historic and cultural resource fax, e-mail, or letter (see ADDRESSES). Wilson Boulevard, Arlington, Virginia
issues: Potential impacts, primarily Those who do not arrange in advance 22209, (703) 525–1234.
related to linear facilities and connected to speak may register at the meeting FOR FURTHER INFORMATION CONTACT:
actions; (preferably at the beginning of the Laura McCann, Designated Federal
• Fate and stability of sequestered meeting) and may speak after previously Officer for the Committee, Office of
CO2 (and other captured gases) during scheduled speakers. Speakers will be Energy Efficiency and Renewable
and after EOR usage; given approximately five minutes to Energy, U.S. Department of Energy,
• Health and safety issues associated present their comments. Those speakers 1000 Independence Avenue, SW.,
with CO2 capture, transport, and usage who want more than five minutes Washington, DC 20585; (202) 586–7766;
in EOR; should indicate the length of time e-mail: laura.mccann@ee.doe.gov or T.J.
• Marketability of products desired in their request. Depending on Heibel at (410) 997–7778 ext. 223; e-
(including by-products) and market the number of speakers, DOE may need mail: theibel@bcs-hq.com.
access to feedstocks; to limit all speakers to five minutes SUPPLEMENTARY INFORMATION:
• Socio-economic impacts, including initially and provide second
the creation of jobs and the impacts of Purpose of Meeting: To provide
opportunities as time permits. Speakers advice and guidance that promotes
State and local tax incentives; may also provide written materials to
• Disproportionate impacts on research and development leading to the
supplement their presentations. Oral production of biobased fuels and
minority and low-income populations; and written comments will be given
• Noise and light impacts: Potential biobased products.
equal consideration. Federal, State and Tentative Agenda: Agenda will
impacts from construction, local elected officials and tribal leaders
transportation of materials, and facility include the following:
may be given priority in the order of • Update on USDA Biomass R&D
operations; those making oral comments.
• Connected actions: Potential Activities.
DOE will begin the formal meeting
development of support facilities or • Update on DOE Biomass R&D
with an overview of Summit’s proposed
supporting infrastructure; Activities.
Texas Clean Energy Project. The
• Cumulative effects that result from • Presentation on DOE/USDA Joint
meeting will not be conducted as an
the incremental impacts of the proposed Solicitation Process.
evidentiary hearing, and speakers will
project when added to other past, • Presentation on DOE and USDA
not be cross-examined. However,
present, and reasonably foreseeable loan guarantee programs.
speakers may be asked questions to help
future projects; • Presentation on SC/NIFA joint
ensure that DOE fully understands the
• Compliance with regulatory comments or suggestions. A presiding
solicitation (genetics).
requirements and environmental • Update on Biomass R&D Board
officer will establish the order of
permitting; Activities.
speakers and provide any additional
• Environmental monitoring plans procedures necessary to conduct the
Public Participation: In keeping with
associated with the power plant and procedures, members of the public are
meeting.
with the CO2 sequestration sites. welcome to observe the business of the
Issued in Washington, DC, this 27th day of Biomass Research and Development
Public Scoping Process May, 2010. Technical Advisory Committee. To
To ensure identification of all issues James J. Markowsky, attend the meeting and/or to make oral
related to DOE’s proposed action and Assistant Secretary, Office of Fossil Energy. statements regarding any of the items on
Summit’s proposed project, DOE seeks [FR Doc. 2010–13215 Filed 6–1–10; 8:45 am] the agenda, you should contact Laura
public input to define the scope of the BILLING CODE 6450–01–P McCann at 202–586–7766; E-mail:
laura.mccann@ee.doe.gov or T.J. Heibel Land Management for a total of 68.5 new 26.2-mile, 34.5/69-kV overhead and
at (410) 997–7778 ext. 223; e-mail: acres of Federal land. underground transmission line from the
theibel@bcs-hq.com. You must make g. Filed Pursuant to: Federal Power powerhouse to an interconnection point
your request for an oral statement at Act, 16 U.S.C. 791(a)–825(r). with Sun River Electric Cooperative,
least 5 business days before the meeting. h. Applicant Contact: Steve C. Inc.’s existing 69-kV transmission line at
Members of the public will be heard in Marmon, Thom A. Fischer, Whitewater Jackson’s Corner; (4) a new 34.5/69 kV
the order in which they sign up at the Engineering Corporation, 3633 step-up substation; (5) a new
beginning of the meeting. Reasonable Alderwood Ave., Bellingham, WA maintenance building located
provision will be made to include the 98225, (360) 738–9999. approximately 1,400 feet downstream of
scheduled oral statements on the i. FERC Contact: Matt Cutlip, phone: the powerhouse adjacent to existing
agenda. The Chair of the Committee will (503) 552–2762, e-mail: Gibson dam operations facilities; and (6)
make every effort to hear the views of matt.cutlip@ferc.gov. appurtenant facilities. The average
all interested parties. If you would like j. Deadline for filing comments, annual generation is estimated to be 40
to file a written statement with the recommendations, terms and gigawatt-hours.
Committee, you may do so either before conditions, and fishway prescriptions:
60 days from the issuance date of this l. A copy of the application is
or after the meeting. The Chair will available for review at the Commission
conduct the meeting to facilitate the notice. All reply comments must be
filed with the Commission within 105 in the Public Reference Room or may be
orderly conduct of business. viewed on the Commission’s Web site at
days from the date of this notice.
Minutes: The minutes of the meeting http://www.ferc.gov using the ‘‘eLibrary’’
All documents may be filed
will be available for public review and link. Enter the docket number excluding
electronically via the Internet. See 18
copying at http:// CFR 385.2001(a)(1)(iii) and the the last three digits in the docket
www.brdisolutions.com/publications/ instructions on the Commission’s Web number field to access the document.
default.aspx#meetings. site (http://www.ferc.gov/docs-filing/ For assistance, contact FERC Online
Issued at Washington, DC, on May 26, ferconline.asp) under the ‘‘eFiling’’ link. Support. A copy is also available for
2010. For a simpler method of submitting text inspection and reproduction at the
Rachel Samuel, only comments, click on ‘‘Quick address in item h above.
Deputy Committee Management Officer. Comment.’’ For assistance, please Register online at http://
[FR Doc. 2010–13153 Filed 6–1–10; 8:45 am] contact FERC Online Support at www.ferc.gov/docs-filing/
BILLING CODE 6450–01–P FERCOnlineSupport@ferc.gov; call toll- esubscription.asp to be notified via e-
free at (866) 208–3676; or, for TTY, mail of new filings and issuances
contact (202) 502–8659. Although the related to this or other pending projects.
DEPARTMENT OF ENERGY Commission strongly encourages For assistance, contact FERC Online
electronic filing, documents may also be Support.
Federal Energy Regulatory paper-filed. To paper-file, mail an
Commission All filings must: (1) Bear in all capital
original and eight copies to: Kimberly D.
letters the title ‘‘COMMENTS,’’ ‘‘REPLY
[Project No. 12478–003] Bose, Secretary, Federal Energy
Regulatory Commission, 888 First COMMENTS,’’
Street, NE., Washington, DC 20426. ‘‘RECOMMENDATIONS,’’ ‘‘TERMS AND
Gibson Dam Hydroelectric Company, CONDITIONS,’’ or ‘‘PRESCRIPTIONS;’’
LLC; Notice Soliciting Comments, and The Commission’s Rules of Practice
and Procedures require all intervenors (2) set forth in the heading the name of
Final Terms and Conditions, the applicant and the project number of
Recommendations, and Prescriptions filing documents with the Commission
to serve a copy of that document on the application to which the filing
May 26, 2010. each person on the official service list responds; (3) furnish the name, address,
Take notice that the following for the project. Further, if an intervenor and telephone number of the person
hydroelectric application and applicant- files comments or documents with the submitting the filing; and (4) otherwise
prepared environmental assessment Commission relating to the merits of an comply with the requirements of 18 CFR
(EA) has been filed with the issue that may affect the responsibilities 385.2001 through 385.2005. All
Commission and is available for public of a particular resource agency, they comments, recommendations, terms and
inspection. must also serve a copy of the document conditions, or prescriptions must set
a. Type of Application: Major on that resource agency. forth their evidentiary basis and
Project—Existing Dam. k. Project Description: The proposed otherwise comply with the requirements
b. Project No.: P–12478–003. project would utilize the existing of 18 CFR 4.34(b). Agencies may obtain
c. Date filed: August 28, 2009. facilities of the U.S. Bureau of copies of the application directly from
d. Applicant: Gibson Dam Reclamation’s (Reclamation’s) Gibson the applicant. Each filing must be
Hydroelectric Company, LLC. dam including the reservoir, existing accompanied by proof of service on all
e. Name of Project: Gibson Dam valve house, and two existing dam persons listed in the service list
Hydroelectric Project. outlet pipes; and would consist of the prepared by the Commission in this
f. Location: On the Sun River, near the following new facilities: (1) Two new proceeding, in accordance with 18 CFR
towns of Augusta and Fairfield, Lewis 72-inch-diameter penstocks extending 4.34(b), and 385.2010.
and Clark and Teton Counties, Montana. 40 feet from the existing outlet pipes to m. EA Preparation Schedule: The
The project would occupy 44.0 acres of the powerhouse; (2) a new powerhouse draft and final EA will be prepared
Federal land administered by the U. S. located near the toe of the dam with according to the following schedule.
Forest Service and 24.5 acres of Federal four turbine/generating units with total Revisions to the schedule may be made
land administered by the U.S. Bureau of installed capacity of 15 megawatts; (3) a as appropriate.
Milestone Target date
Filing of Motions to Intervene and Protests ................................................................................................................................ June 21, 2010.
Milestone Target date
Filing of Comments, Final Recommendations, ...........................................................................................................................

Final Terms and Conditions, and Fishway Prescriptions ........................................................................................................... July 26, 2010.
Reply Comments due ................................................................................................................................................................. September 9, 2010.
Issue Draft EA ............................................................................................................................................................................ December 8, 2010.
Comments on Draft EA due ....................................................................................................................................................... January 7, 2011.
Issue Final EA ............................................................................................................................................................................ May 17, 2011.
Kimberly D. Bose, Review will serve to notify federal and copies of the environmental documents,
Secretary. state agencies of the timing for the and will be notified of meetings
[FR Doc. 2010–13276 Filed 6–1–10; 8:45 am] completion of all necessary reviews, and associated with the Commission’s
BILLING CODE 6717–01–P the subsequent need to complete all environmental review process.
Federal authorizations within 90 days of Environmental commentors will not be
the date of issuance of the Commission required to serve copies of filed
DEPARTMENT OF ENERGY staff’s FEIS or EA. documents on all other parties.
There are two ways to become However, the non-party commentors
Federal Energy Regulatory involved in the Commission’s review of
will not receive copies of all documents
Commission this project. First, any person wishing to
filed by other parties or issued by the
[Docket No. CP10–434–000]
obtain legal status by becoming a party
to the proceedings for this project Commission (except for the mailing of
should, on or before the comment date environmental documents issued by the
Colorado Interstate Gas Company;
stated below, file with the Federal Commission) and will not have the right
Notice of Application
Energy Regulatory Commission, 888 to seek court review of the
May 26, 2010. First Street, NE., Washington, DC 20426, Commission’s final order.
Take notice that on May 17, 2010, a motion to intervene in accordance The Commission strongly encourages
Colorado Interstate Gas Company (CIG), with the requirements of the electronic filings of comments, protests
P.O. Box 1087, Colorado Springs, Commission’s Rules of Practice and and interventions in lieu of paper using
Colorado 80944, filed with the Federal Procedure (18 CFR 385.214 or 385.211) the ‘‘eFiling’’ link at http://www.ferc.gov.
Energy Regulatory Commission an and the Regulations under the NGA (18 Persons unable to file electronically
application under section 7(c) of the CFR 157.10). A person obtaining party should submit an original and 14 copies
Natural Gas Act, for a certificate of status will be placed on the service list of the protest or intervention to the
public convenience and necessity maintained by the Secretary of the
Federal Energy Regulatory Commission,
authorizing the reclassification of Commission and will receive copies of
certain gas storage assets at its Latigo 888 First Street, NE., Washington, DC
all documents filed by the applicant and
Storage Field in Arapahoe County, by all other parties. A party must submit 20426.
Colorado, all as more fully set forth in 14 copies of filings made with the This filing is accessible on-line at
the request which is on file with the Commission and must mail a copy to http://www.ferc.gov, using the
Commission and open to public the applicant and to every other party in ‘‘eLibrary’’ link and is available for
inspection. the proceeding. Only parties to the review in the Commission’s Public
Any questions regarding this proceeding can ask for court review of Reference Room in Washington, DC.
application should be directed to Susan Commission orders in the proceeding. There is an ‘‘eSubscription’’ link on the
C. Stires, Director, Regulatory Affairs, However, a person does not have to Web site that enables subscribers to
Colorado Interstate Gas Company, P.O. intervene in order to have comments receive e-mail notification when a
Box 1087, Colorado Springs, Colorado considered. The second way to document is added to a subscribed
80944 at 719–667–7514 or David R. participate is by filing with the docket(s). For assistance with any FERC
Cain, Senior Counsel, Colorado Secretary of the Commission, as soon as Online service, please e-mail
Interstate Gas Company, P.O. Box 1087, possible, an original and two copies of FERCOnlineSupport@ferc.gov, or call
Colorado Springs, Colorado 80944 at comments in support of or in opposition
(866) 208–3676 (toll free). For TTY, call
719–520–4898. to this project. The Commission will
Pursuant to section 157.9 of the (202) 502–8659.
consider these comments in
Commission’s rules, 18 CFR 157.9, determining the appropriate action to be Comment Date: June 16, 2010.
within 90 days of this Notice the taken, but the filing of a comment alone Kimberly D. Bose,
Commission staff will either: complete will not serve to make the filer a party
its environmental assessment (EA) and to the proceeding. The Commission’s Secretary.
place it into the Commission’s public rules require that persons filing [FR Doc. 2010–13273 Filed 6–1–10; 8:45 am]
record (eLibrary) for this proceeding; or comments in opposition to the project BILLING CODE 6717–01–P
issue a Notice of Schedule for provide copies of their protests only to
Environmental Review. If a Notice of the party or parties directly involved in
Schedule for Environmental Review is the protest.
issued, it will indicate, among other Persons who wish to comment only
milestones, the anticipated date for the on the environmental review of this
Commission staff’s issuance of the final project should submit an original and
environmental impact statement (FEIS) two copies of their comments to the
or EA for this proposal. The filing of the Secretary of the Commission.
EA in the Commission’s public record Environmental commentors will be
for this proceeding or the issuance of a placed on the Commission’s
Notice of Schedule for Environmental environmental mailing list, will receive
DEPARTMENT OF ENERGY may affect the responsibilities of a Project Number of the particular
particular resource agency, they must application to which the filing refers.
Federal Energy Regulatory also serve a copy of the document on p. Agency Comments: Federal, State,
Commission that resource agency. A copy of any and local agencies are invited to file
[Project No. 516–465] motion to intervene must also be served comments on the described application.
upon each representative of the A copy of the application may be
South Carolina Electric & Gas Applicant specified in the particular obtained by agencies directly from the
Company; Notice of Application for application. Applicant. If an agency does not file
Amendment of License and Soliciting k. Description of Application: The comments within the time specified for
Comments, Motions To Intervene, and licensee proposes to permit the filing comments, it will be presumed to
Protests relocation of an existing two-slip dock, have no comments. One copy of an
which would be attached to the existing agency’s comments must also be sent to
May 26, 2010. fuel dock, and the installation of two the Applicant’s representatives.
Take notice that the following new floating boat docks, each with a
Kimberly D. Bose,
hydroelectric application has been filed capacity of 10 watercraft. This would
Secretary.
with the Commission and is available provide additional moorage for patrons
for public inspection: of Riverwinds Landing and would allow [FR Doc. 2010–13274 Filed 6–1–10; 8:45 am]
a. Type of Application: Non-project more than one boat at a time to access BILLING CODE 6717–01–P
use of project lands and waters. the fuel dock. The new docks would be
b. Project No: 516–465. attached to the shoreline with a ramp
c. Date Filed: May 4, 2010. secured to the ground. DEPARTMENT OF ENERGY
d. Applicant: South Carolina Electric l. Locations of the Application: A
& Gas Company. Federal Energy Regulatory
copy of the application is available for
e. Name of Project: Saluda Commission
inspection and reproduction at the
Hydroelectric Project. Commission’s Public Reference Room, [Project No. 2114–208]
f. Location: The project is located on located at 888 First Street, NE., Room
the Saluda and Congaree Rivers in 2A, Washington, DC 20426, or by calling Public Utility District No. 2 of Grant
Lexington, Newberry, Richland, and (202) 502–8371. This filing may also be County, WA; Notice of Application for
Saluda Counties, South Carolina. The viewed on the Commission’s Web site at Amendment of License and Soliciting
proposed action would occur in http://www.ferc.gov using the ‘‘eLibrary’’ Comments, Motions To Intervene, and
Newberry County, South Carolina. link. Enter the docket number excluding Protests
g. Pursuant to: Federal Power Act, 16 the last three digits (P–516) in the May 26, 2010.
U.S.C. 791a—825r. docket number field to access the Take notice that the following
h. Applicant Contact: Mr. Tommy document. You may also register online hydroelectric application has been filed
Boozer, Manager, Lake Management at http://www.ferc.gov/docs-filing/ with the Commission and is available
Programs, SCE&G, 6248 Bush River esubscription.asp to be notified via e- for public inspection:
Road, Columbia, SC 29212, telephone mail of new filings and issuances a. Type of Application: Shoreline
(803) 217–9007. related to this or other pending projects. Management Plan.
i. FERC Contact: Any questions on For assistance, call 1–866–208–3676 or b. Project No: 2114–208.
this notice should be addressed to Mr. e-mail FERCOnlineSupport@ferc.gov; c. Date Filed: March 2, 2010,
Christopher Yeakel at (202) 502–8132, for TTY, call (202) 502–8659. A copy is supplemented April 20, 2010.
or e-mail address: also available for inspection and d. Applicant: Public Utility District
christopher.yeakel@ferc.gov. reproduction at the address in item (h) No. 2 of Grant County, Washington.
j. Deadline for filing comments and/ above. e. Name of Project: Priest Rapids
or motions: June 28, 2010. m. Individuals desiring to be included Hydroelectric Project.
Comments, protests, and on the Commission’s mailing list should f. Location: The project is located on
interventions may be filed electronically so indicate by writing to the Secretary the mid-Columbia River, in portions of
via the Internet in lieu of paper. See 18 of the Commission. Grant, Yakima, Kittitas, Douglas,
CFR 385.2001(a)(1)(iii) and the n. Comments, Protests, or Motions To Benton, and Chelan Counties
instructions on the Commission’s Web Intervene: Anyone may submit Washington, and occupies
site (http://www.ferc.gov) under the ‘‘e- comments, a protest, or a motion to approximately 3,052 acres of Federal
filing’’ link. The Commission strongly intervene in accordance with the lands managed by the U.S. Bureau of
encourages electronic filings. requirements of Rules of Practice and Land Management, U.S. Department of
All documents (original and eight Procedure, 18 CFR 385.210, .211, .214. the Army, U.S. Fish and Wildlife
copies) filed by paper should be sent to: In determining the appropriate action to Service, and U.S. Department of Energy.
Secretary, Federal Energy Regulatory take, the Commission will consider all g. Pursuant to: Federal Power Act, 16
Commission, 888 First Street, NE., protests or other comments filed, but U.S.C. 791a–825r.
Washington, DC 20426. Please include only those who file a motion to h. Applicant Contact: Kelly Larimer,
the project number (P–516–465) on any intervene in accordance with the Lands and Recreation Resources
comments or motions filed. Commission’s Rules may become a Manager, Public Utility District No. 2 of
The Commission’s Rules of Practice party to the proceeding. Any comments, Grant County, P.O. Box 878, Ephrata,
and Procedure require all interveners protests, or motions to intervene must WA 98823. Tel: (509) 754–0500 ext.
filing documents with the Commission be received on or before the specified 3196 or e-mail address:
to serve a copy of that document on comment date for the particular klarime@gcpud.org.
each person whose name appears on the application. i. FERC Contact: Any questions on
official service list for the project. o. Any filings must bear in all capital this notice should be addressed to Mr.
Further, if an intervener files comments letters the title ‘‘COMMENTS’’, Christopher Yeakel at (202) 502–8132,
or documents with the Commission ‘‘PROTEST’’, or ‘‘MOTION TO or e-mail address:
relating to the merits of an issue that INTERVENE’’, as applicable, and the christopher.yeakel@ferc.gov.
j. Deadline for filing comments and or so indicate by writing to the Secretary issuing a license for the project, with
motions: June 28, 2010. of the Commission. appropriate environmental measures,
Comments, protests, and n. Comments, Protests, or Motions to would not constitute a major Federal
interventions may be filed electronically Intervene: Anyone may submit action significantly affecting the quality
via the Internet in lieu of paper. See 18 comments, a protest, or a motion to of the human environment.
CFR 385.2001(a)(1)(iii) and the intervene in accordance with the A copy of the EA is on file with the
instructions on the Commission’s Web requirements of Rules of Practice and Commission and is available for public
site (http://www.ferc.gov) under the ‘‘e- Procedure, 18 CFR 385.210, .211, .214. inspection. The EA may also be viewed
filing’’ link. The Commission strongly In determining the appropriate action to on the Commission’s Web site at
encourages electronic filings. take, the Commission will consider all http://www.ferc.gov using the
All documents (original and eight protests or other comments filed, but ‘‘eLibrary’’ link. Enter the docket number
copies) filed by paper should be sent to: only those who file a motion to excluding the last three digits in the
Secretary, Federal Energy Regulatory intervene in accordance with the docket number field to access
Commission, 888 First Street, NE., Commission’s Rules may become a documents. For assistance, contact
Washington, DC 20426. Please include party to the proceeding. Any comments, FERC Online Support at
the project number (P–2114–208) on any protests, or motions to intervene must FERCOnlineSupport@ferc.gov or toll-
comments or motions filed. be received on or before the specified free at 1–866–208–3676, or for TTY,
The Commission’s Rules of Practice comment date for the particular (202) 502–8659. You may also register
and Procedure require all interveners application. online at http://www.ferc.gov/docs-
filing documents with the Commission o. Any filings must bear in all capital filing/esubscription.asp to be notified
to serve a copy of that document on letters the title ‘‘COMMENTS’’, via e-mail of new filings and issuances
each person whose name appears on the ‘‘PROTEST’’, or ‘‘MOTION TO related to this or other pending projects.
official service list for the project. INTERVENE’’, as applicable, and the For assistance, contact FERC Online
Further, if an intervener files comments Project Number of the particular Support.
or documents with the Commission application to which the filing refers. Any comments should be filed within
relating to the merits of an issue that p. Agency Comments: Federal, State, 30 days from the issuance date of this
may affect the responsibilities of a and local agencies are invited to file notice, and should be addressed to the
particular resource agency, they must comments on the described application. Secretary, Federal Energy Regulatory
also serve a copy of the document on A copy of the application may be Commission, 888 First Street, NE.,
that resource agency. A copy of any obtained by agencies directly from the Room 1–A, Washington, DC 20426.
motion to intervene must also be served Applicant. If an agency does not file Please affix ‘‘Cedar Lake Dam
upon each representative of the comments within the time specified for Hydroelectric Project No. 12628–002’’ to
Applicant specified in the particular filing comments, it will be presumed to all comments. Comments may be filed
application. have no comments. One copy of an electronically via Internet in lieu of
k. Description of Application: The
agency’s comments must also be sent to paper. The Commission strongly
licensee has filed an SMP for the Priest
the Applicant’s representatives. encourages electronic filings. See 18
Rapids Hydroelectric Project. The SMP
CFR 385.2001(a)(1)(iii) and the
is a comprehensive plan to manage the Kimberly D. Bose,
instructions on the Commission’s Web
multiple resources and uses of the Secretary. site under the ‘‘eFiling’’ link. For further
project’s shoreline in a manner that is [FR Doc. 2010–13275 Filed 6–1–10; 8:45 am] information, contact Michael Watts at
consistent with license requirements BILLING CODE 6717–01–P (202) 502–6123.
and project purposes, protection of
environmental resources, and to address Kimberly D. Bose,
the needs and interests of stakeholders. DEPARTMENT OF ENERGY Secretary.
l. Locations of the Application: A of [FR Doc. 2010–13277 Filed 6–1–10; 8:45 am]
the application is available for Federal Energy Regulatory BILLING CODE 6717–01–P
inspection and reproduction at the Commission
Commission’s Public Reference Room,
[Project No. 12628–002–IA]
located at 888 First Street, NE, Room DEPARTMENT OF ENERGY
2A, Washington, DC 20426, or by calling The City of Nashua, Iowa; Notice of
(202) 502–8371. This filing may also be Availability of Environmental Federal Energy Regulatory
viewed on the Commission’s Web site at Assessment Commission
http://www.ferc.gov using the ‘‘eLibrary’’
link. Enter the docket number excluding May 26, 2010. Combined Notice of Filings #1
the last three digits (P–2114) in the In accordance with the National
May 25, 2010.
docket number field to access the Environmental Policy Act of 1969 and
Take notice that the Commission
document. You may also register online the Federal Energy Regulatory
received the following electric corporate
at http://www.ferc.gov/docs-filing/ Commission’s regulations, 18 CFR part
filings:
esubscription.asp to be notified via e- 380 (Order No. 486, 52 FR 47897), the Docket Numbers: EC10–73–000.
mail of new filings and issuances Office of Energy Projects has reviewed Applicants: KGEN Sandersville LLC.
related to this or other pending projects. the application for an original license Description: Application for
For assistance, call 1–866–208–3676 or for the Cedar Lake Dam Hydroelectric Authorization for Disposition of
e-mail FERCOnlineSupport@ferc.gov, Project, to be located on the Cedar River, Jurisdictional Facilities and Request for
for TTY, call (202) 502–8659. A copy is within the City of Nashua, Chickasaw Expedited Action of KGen Sandersville
also available for inspection and County, Iowa, and has prepared an LLC.
reproduction at the address in item (h) Environmental Assessment (EA). In the Filed Date: 05/24/2010.
above. EA, Commission staff analyze the Accession Number: 20100524–5078.
m. Individuals desiring to be included potential environmental effects of Comment Date: 5 p.m. Eastern Time
on the Commission’s mailing list should licensing the project and conclude that on Monday, June 14, 2010.
Take notice that the Commission Applicants: Midwest Independent again in a subdocket related to a
received the following electric rate Transmission System Operator, Inc. compliance filing if you have previously
filings: Description: Midwest Independent intervened in the same docket. Protests
Docket Numbers: ER10–794–002. Transmission System Operator, Inc will be considered by the Commission
Applicants: Entergy Services, Inc. submits Notice of Cancellation of the in determining the appropriate action to
Description: Entergy Services, Inc Adjacent Balancing Authority be taken, but will not serve to make
submits clean copy of the sub, Entergy Coordination Agreement. protestants parties to the proceeding.
open access transmission tariff sheets. Filed Date: 05/24/2010. Anyone filing a motion to intervene or
Filed Date: 05/24/2010. Accession Number: 20100525–0202. protest must serve a copy of that
Accession Number: 20100525–0203. Comment Date: 5 p.m. Eastern Time document on the Applicant. In reference
Comment Date: 5 p.m. Eastern Time on Monday, June 14, 2010. to filings initiating a new proceeding,
on Monday, June 14, 2010. Docket Numbers: ER10–1302–000. interventions or protests submitted on
Docket Numbers: ER10–892–000; Applicants: Central Hudson Gas & or before the comment deadline need
ER10–892–001. Electric Corporation. not be served on persons other than the
Applicants: Southern Turner Description: Central Hudson Gas & Applicant.
Cimarron I, LLC. Electric Corporation submits filing to As it relates to any qualifying facility
Description: Amendment to cancel its Open Access Transmission filings, the notices of self-certification
Application of Southern Turner Tariff, FERC Electric Tariff, Original [or self-recertification] listed above, do
Cimarron LLC. Volume 2. not institute a proceeding regarding
Filed Date: 05/20/2010. Filed Date: 05/24/2010. qualifying facility status. A notice of
Accession Number: 20100520–5128. Accession Number: 20100525–0204. self-certification [or self-recertification]
Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time simply provides notification that the
on Thursday, June 3, 2010. on Monday, June 14, 2010. entity making the filing has determined
Docket Numbers: ER10–1297–000. Docket Numbers: ER10–1303–000. the facility named in the notice meets
Applicants: Tampa Electric Company. Applicants: Genesee Power Station the applicable criteria to be a qualifying
Description: Filing by Tampa Electric Limited Partnership. facility. Intervention and/or protest do
Company of Service Agreement under Description: Genesee Power Station not lie in dockets that are qualifying
cost-based power sales tariff re Tampa Limited Partnership submits tariff filing facility self-certifications or self-
Electric Company. per 35.12: Genesee Power Station LP recertifications. Any person seeking to
Filed Date: 05/21/2010. FERC Schedule No 1 Electric Tariff to be challenge such qualifying facility status
Accession Number: 20100524–0209. effective 5/26/2010. may do so by filing a motion pursuant
Comment Date: 5 p.m. Eastern Time Filed Date: 05/25/2010. to 18 CFR 292.207(d)(iii). Intervention
on Friday, June 11, 2010. Accession Number: 20100525–5018 and protests may be filed in response to
Comment Date: 5 p.m. Eastern Time notices of qualifying facility dockets
Docket Numbers: ER10–1298–000. other than self-certifications and self-
on Tuesday, June 15, 2010.
Applicants: Southwestern Electric recertifications.
Power Company. Docket Numbers: ER10–1304–000.
Applicants: DownEast Power The Commission encourages
Description: Southwestern Electric
Company, LLC. electronic submission of protests and
Power Company submits Commission
Description: DownEast Power interventions in lieu of paper, using the
review actuarial reports with respect to
Company, LLC submits tariff filing per FERC Online links at http://
actual post-employment benefits etc.
35.12: Baseline eTariff Filing Pursuant www.ferc.gov. To facilitate electronic
Filed Date: 05/24/2010.
to Order No. 714 to be effective 6/1/ service, persons with Internet access
Accession Number: 20100524–0215.
2009. who will eFile a document and/or be
Comment Date: 5 p.m. Eastern Time
Filed Date: 05/25/2010. listed as a contact for an intervenor
on Monday, June 14, 2010.
Accession Number: 20100525–5033. must create and validate an
Docket Numbers: ER10–1299–000. eRegistration account using the
Comment Date: 5 p.m. Eastern Time
Applicants: Westar Energy, Inc. eRegistration link. Select the eFiling
on Tuesday, June 15, 2010.
Description: Westar Energy, Inc link to log on and submit the
Take notice that the Commission
submits the Interconnection and intervention or protests.
received the following electric securities
Balancing Area Services Agreement Persons unable to file electronically
filings:
with Midwest Energy, Inc to be effective should submit an original and 14 copies
Docket Numbers: ES10–45–000.
6/1/10. of the intervention or protest to the
Applicants: MDU Resources Group,
Filed Date: 05/24/2010. Federal Energy Regulatory Commission,
Inc.
Accession Number: 20100524–0214. Description: Application of MDU 888 First St., NE., Washington, DC
Comment Date: 5 p.m. Eastern Time Resources Group, Inc. for authority to 20426.
on Monday, June 14, 2010. Issue. The filings in the above proceedings
Docket Numbers: ER10–1300–000. Filed Date: 05/24/2010. are accessible in the Commission’s
Applicants: Southwest Power Pool Accession Number: 20100524–5141. eLibrary system by clicking on the
Inc. Comment Date: 5 p.m. Eastern Time appropriate link in the above list. They
Description: Southwest Power Pool, on Monday, June 14, 2010. are also available for review in the
Inc submits Third Revised Sheet 186 et Any person desiring to intervene or to Commission’s Public Reference Room in
al. to FERC Electric Tariff, Fifth Revised protest in any of the above proceedings Washington, DC. There is an
Volume 1 to be effective 6/23/10. must file in accordance with Rules 211 eSubscription link on the Web site that
Filed Date: 05/24/2010. and 214 of the Commission’s Rules of enables subscribers to receive e-mail
Accession Number: 20100524–0213. Practice and Procedure (18 CFR 385.211 notification when a document is added
Comment Date: 5 p.m. Eastern Time and 385.214) on or before 5 p.m. Eastern to a subscribed docket(s). For assistance
on Monday, June 14, 2010. time on the specified comment date. It with any FERC Online service, please e-
Docket Numbers: ER10–1301–000. is not necessary to separately intervene mail FERCOnlineSupport@ferc.gov or
call (866) 208–3676 (toll free). For TTY, Docket Numbers: ER10–1289–000. Applicants: PJM Interconnection
call (202) 502–8659. Applicants: California Independent L.L.C.
System Operator Corporation. Description: PJM Interconnection,
Nathaniel J. Davis, Sr.,
Description: The California LLC submits an executed
Deputy Secretary. Independent System Operator Interconnection Construction Service
[FR Doc. 2010–13171 Filed 6–1–10; 8:45 am] Corporation submits Commission filing Agreement with Synergics Wind Energy,
BILLING CODE 6717–01–P and acceptance of amendment to LLC et al.
Service Agreement 798 and Termination Filed Date: 05/21/2010.
of Service Agreement 584. Accession Number: 20100524–0205.
DEPARTMENT OF ENERGY Filed Date: 05/21/2010. Comment Date: 5 p.m. Eastern Time
Accession Number: 20100521–0206. on Friday, June 11, 2010.
Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time
Commission Docket Numbers: ER10–1296–000.
on Friday, June 11, 2010. Applicants: Wisconsin Electric Power
Combined Notice of Filings #1 Docket Numbers: ER10–1290–000. Company.
Applicants: San Diego Gas & Electric Description: Wisconsin Electric Power
May 24, 2010. Company. Company submits Original Sheet 2 et al.
Take notice that the Commission Description: San Diego Gas & Electric to FERC Electric Tariff, Original Volume
received the following electric rate Company submits tariff filing per 35: 10 to be effective 7/21/10.
filings: San Diego Gas & Electric Company Filed Date: 05/21/2010.
Docket Numbers: ER09–934–004; Market Based Rates Tariff to be effective Accession Number: 20100524–0200.
ER09–936–001. 5/21/2010. Comment Date: 5 p.m. Eastern Time
Applicants: Bangor Hydro Electric Filed Date: 05/21/2010. on Friday, June 11, 2010.
Company. Accession Number: 20100521–5070. Any person desiring to intervene or to
Description: Offer of Settlement of Comment Date: 5 p.m. Eastern Time protest in any of the above proceedings
Bangor Hydro Electric Company. on Friday, June 11, 2010. must file in accordance with Rules 211
Filed Date: 05/24/2010. Docket Numbers: ER10–1291–000. and 214 of the Commission’s Rules of
Accession Number: 20100524–5035. Applicants: GenConn Energy LLC. Practice and Procedure (18 CFR 385.211
Comment Date: 5 p.m. Eastern Time Description: GenConn Energy LLC and 385.214) on or before 5 p.m. Eastern
on Monday, June 14, 2010. submits tariff filing per 35.12: Initial time on the specified comment date. It
Docket Numbers: ER09–1589–003. Filing of Market-Based Rate Tariff to be is not necessary to separately intervene
Applicants: FirstEnergy Service effective 5/21/2010. again in a subdocket related to a
Company. Filed Date: 05/21/2010. compliance filing if you have previously
Description: Request for Waiver for Accession Number: 20100521–5113. intervened in the same docket. Protests
Demand Response Participating in FRR Comment Date: 5 p.m. Eastern Time will be considered by the Commission
Integration Auctions of FirstEnergy on Friday, June 11, 2010. in determining the appropriate action to
Service Company. Docket Numbers: ER10–1292–000. be taken, but will not serve to make
Filed Date: 05/20/2010. Applicants: CMS Energy Resource protestants parties to the proceeding.
Accession Number: 20100520–5129. Management Company. Anyone filing a motion to intervene or
Comment Date: 5 p.m. Eastern Time Description: CMS Energy Resource protest must serve a copy of that
on Thursday, June 10, 2010. Management Company submits tariff document on the Applicant. In reference
Docket Numbers: ER10–550–002. filing under Schedule No. 1 Electric to filings initiating a new proceeding,
Applicants: Southwest Power Pool Tariff, to be effective 5/25/2010. interventions or protests submitted on
Inc. Filed Date: 05/24/2010. or before the comment deadline need
Description: Southwest Power Pool, Accession Number: 20100524–5013. not be served on persons other than the
Inc submits Seventh Revised Sheet 14 et Comment Date: 5 p.m. Eastern Time Applicant.
al. to FERC Electric Tariff, Fifth Revised on Monday, June 14, 2010. As it relates to any qualifying facility
Volume 1. Docket Numbers: ER10–1293–000. filings, the notices of self-certification
Filed Date: 05/21/2010. Applicants: American Electric Power [or self-recertification] listed above do
Accession Number: 20100524–0201. Service Corporation. not institute a proceeding regarding
Comment Date: 5 p.m. Eastern Time Description: AEP Texas Central qualifying facility status. A notice of
on Friday, June 11, 2010. Company submits Service Agreement self-certification [or self-recertification]
Docket Numbers: ER10–792–002. 531 et al. to FERC Electric Tariff, Third simply provides notification that the
Applicants: TC Energy Trading, LLC. Revised Volume 6. entity making the filing has determined
Description: TC Energy Trading, LLC Filed Date: 05/21/2010. the facility named in the notice meets
submits errata to revise the title of the Accession Number: 20100524–0203. the applicable criteria to be a qualifying
issuer of the tariff sheets. Comment Date: 5 p.m. Eastern Time facility. Intervention and/or protests do
Filed Date: 05/21/2010. on Friday, June 11, 2010. not lie in dockets that are qualifying
Accession Number: 20100521–0209. Docket Numbers: ER10–1294–000. facility self-certifications or self-
Comment Date: 5 p.m. Eastern Time Applicants: Southern California recertifications. Any person seeking to
on Friday, June 11, 2010. Edison Company. challenge such qualifying facility status
Docket Numbers: ER09–877–001. Description: Southern California may do so by filing a motion pursuant
Applicants: Entergy Arkansas, Inc. Edison Company submits letter to 18 CFR 292.207(d)(iii). Intervention
Description: Compliance Refund agreement with Solar Millennium, LLC. and protests may be filed in response to
Report of Entergy Services, Inc. Filed Date: 05/21/2010. notices of qualifying facility dockets
Filed Date: 05/21/2010. Accession Number: 20100524–0204. other than self-certifications and self-
Accession Number: 20100521–5103. Comment Date: 5 p.m. Eastern Time recertifications.
Comment Date: 5 p.m. Eastern Time on Friday, June 11, 2010. The Commission encourages
on Friday, June 11, 2010. Docket Numbers: ER10–1295–000. electronic submission of protests and
interventions in lieu of paper, using the enables subscribers to receive e-mail Commissioners and members of its staff
FERC Online links at http:// notification when a document is added may attend the meeting noted below.
www.ferc.gov. To facilitate electronic to a subscribed docket(s). For assistance Their attendance is part of the
service, persons with Internet access with any FERC Online service, please e- Commission’s ongoing outreach efforts.
who will eFile a document and/or be mail FERCOnlineSupport@ferc.gov or
listed as a contact for an intervenor call (866) 208–3676 (toll free). For TTY, Entergy Regional State Committee
must create and validate an call (202) 502–8659. Meeting
eRegistration account using the
Nathaniel J. Davis, Sr., June 15, 2010 (1 p.m.–5 p.m.)
eRegistration link. Select the eFiling
Deputy Secretary. June 16, 2010 (1 p.m.–5 p.m.) Grand
link to log on and submit the
intervention or protests. [FR Doc. 2010–13172 Filed 6–1–10; 8:45 am] Hotel Marriott Resort, One Grand
Persons unable to file electronically BILLING CODE 6717–01–P Blvd., Point Clear, AL 36564, 251–
should submit an original and 14 copies 928–9201.
of the intervention or protest to the The discussions may address matters
Federal Energy Regulatory Commission, DEPARTMENT OF ENERGY
at issue in the following proceedings:
888 First St., NE., Washington, DC
Federal Energy Regulatory
20426.
The filings in the above proceedings Commission
are accessible in the Commission’s Notice of FERC Attendance at the
eLibrary system by clicking on the Entergy Regional State Committee
appropriate link in the above list. They Meeting
are also available for review in the
Commission’s Public Reference Room in May 26, 2010.
Washington, DC. There is an The Federal Energy Regulatory
eSubscription link on the Web site that Commission hereby gives notice that
Docket No. OA07–32 .................................................................................................................. Entergy Services, Inc.

Docket No. OA08–59 .................................................................................................................. Entergy Services, Inc.
Docket No. EL00–66 .................................................................................................................. Louisiana Public Service Commission v. Entergy
Services, Inc.
Services, Inc.
Docket No. EL05–15 .................................................................................................................. Arkansas Electric Cooperative Corp. v. Entergy
Arkansas, Inc.
Services, Inc.
Services, Inc.
Docket No. EL08–60 .................................................................................................................. Ameren Services Co. v. Entergy Services, Inc.
Docket No. EL09–43 .................................................................................................................. Arkansas Public Service Commission v. Entergy
Services, Inc.
Services, Inc.
Docket No. EL09–78 .................................................................................................................. South Mississippi Electric Power Association v.
Entergy Services, Inc.
Services, Inc.
Services, Inc.
Docket No. ER05–1065 .............................................................................................................. Entergy Services, Inc.
Docket No. ER07–682 ................................................................................................................ Entergy Services, Inc.
These meetings are open to the ENVIRONMENTAL PROTECTION comments, access the index listing of
public. AGENCY the contents of the docket, and to access
For more information, contact Patrick those documents in the public docket
[Docket ID Numbers EPA–HQ–OECA–2010–
Clarey, Office of Energy Market that are available electronically. When
0340, 0341, 0347, 0350—0377; FRL–9157–
7] in the system, select ‘‘search,’’ then key
Regulation, Federal Energy Regulatory
in the docket ID number identified in
Commission at (317) 249–5937 or
Agency Information Collection this document.
patrick.clarey@ferc.gov.
Activities: Request for Comments on (2) Instructions for Submitting
Kimberly D. Bose, Thirty-One Proposed Information Comments
Secretary. Collection Requests (ICRs)
Submit your comments by one of the
[FR Doc. 2010–13272 Filed 6–1–10; 8:45 am] AGENCY: Environmental Protection following methods:
BILLING CODE 6717–01–P Agency (EPA). (a) Electronic Submission: Access
ACTION: Notice. http://www.regulations.gov and follow
the on-line instructions for submitting
DEPARTMENT OF ENERGY SUMMARY: In compliance with the comments.
Paperwork Reduction Act (44 U.S.C. (b) E-mail: docket.oeca@epa.gov.
Federal Energy Regulatory 3501 et seq.), this document announces (c) Fax: (202) 566–1511.
Commission that EPA is planning to submit the (d) Mail: Enforcement and
following thirty-one existing, approved, Compliance Docket and Information
[Docket No. AD10–11–000] continuing Information Collection Center (ECDIC), Environmental
Requests (ICRs) to the Office of Protection Agency, EPA Docket Center
Frequency Regulation Compensation Management and Budget (OMB) for the (EPA/DC), Mailcode: 2201T, 1200
in the Organized Wholesale Power purpose of renewing the ICRs. Before Pennsylvania Avenue, NW.,
Markets; Further Notice Concerning submitting the ICRs to OMB for review Washington, DC 20460.
Technical Conference and approval, EPA is soliciting (e) Hand Delivery: Enforcement and
comments on specific aspects of the Compliance Docket and Information
May 25, 2010. information collections as described Center (ECDIC), Environmental
under SUPPLEMENTARY INFORMATION. Protection Agency, EPA Docket Center
Take notice that on May 26, 2010, the
DATES: Comments must be submitted on (EPA/DC), EPA West, Room 3334, 1301
Federal Energy Regulatory Commission
or before August 2, 2010. Constitution Avenue, NW., Washington,
staff will convene a technical
ADDRESSES: Comments may be
DC. The EPA Docket Center is open
conference related to the Commission’s from 8:30 a.m. to 4:30 p.m., Monday
Notice of Proposed Rulemaking on submitted electronically, by mail, or
through hand delivery/courier service. through Friday, excluding legal
Frequency Regulation Compensation in holidays. Deliveries are accepted only
the Organized Wholesale Power Follow the detailed instructions as
provided under SUPPLEMENTARY during the Docket Center’s normal hours
Markets, as previously announced.1 of operation, and special arrangements
INFORMATION, section A.
The discussions at the conference, should be made for deliveries of boxed
FOR FURTHER INFORMATION CONTACT: The
which is open to the public, may information.
contact individuals for each ICR are Direct your comments to the specific
address matters at issue in the following listed under SUPPLEMENTARY
Commission proceedings: docket listed in SUPPLEMENTARY
INFORMATION, section II. C.
INFORMATION, section II. B, and reference
Docket No. ER09–1049–000, Midwest SUPPLEMENTARY INFORMATION: the OMB Control Number for the ICR. It
Independent Transmission System is the EPA policy that all comments
Operator, Inc. A. How can I access the docket and/or
submit comments? received will be included in the public
Docket No. ER09–1126–000, Midwest docket without change and may be
Independent Transmission System (1) Docket Access Instructions made available online at http://
Operator, Inc. EPA has established a public docket www.regulations.gov, including any
Docket No. ER07–1372–000, Midwest for the ICRs listed in the SUPPLEMENTARY personal information provided, unless
Independent Transmission System INFORMATION, section II. B. The docket is the comment includes information
available for online viewing at http:// claimed to be Confidential Business
Operator, Inc.
www.regulations.gov, or in person Information (CBI) or other information
For more information, please contact viewing at the Enforcement and whose disclosure is restricted by statute.
Tatyana Kramskaya, 202–502–6262, Compliance Docket and Information Do not submit information that you
tatyana.kramskaya@ferc.gov; or Eric Center (ECDIC), in the EPA Docket consider to be CBI or otherwise
Winterbauer, 202–502–8329, Center (EPA/DC), EPA West, Room protected through http://
eric.winterbauer@ferc.gov. 3334, 1301 Constitution Avenue, NW., www.regulations.gov or e-mail. The
Washington, DC. The EPA/DC Public http://www.regulations.gov website is
Kimberly D. Bose,
Reading Room is open from 8 a.m. to an ‘‘anonymous access’’ system, which
Secretary. 4:30 p.m., Monday through Friday, means EPA will not know your identity
[FR Doc. 2010–13271 Filed 6–1–10; 8:45 am] excluding legal holidays. The telephone or contact information unless you
BILLING CODE 6717–01–P number for the Reading Room is (202) provide it in the body of your comment.
566–1744, and the telephone number for If you send an e-mail comment directly
1 Notice of Technical Conference re Frequency
the Enforcement and Compliance to EPA without going through http://
Docket and Information Center (ECDIC) www.regulations.gov, your e-mail
Compensation in the Organized Wholesale Power
Markets, 75 FR 23,759, as supplemented by docket is (202) 566–1752. address will be automatically captured
Supplemental Notice of Technical Conference re Use http://www.regulations.gov to and included as part of the comment
Frequency Compensation in the Organized obtain a copy of the draft collection of that is placed in the public docket and
Wholesale Power Markets, issued April 27, 2010. information, submit or view public made available on the Internet. If you
submit an electronic comment, EPA II. ICRs To Be Renewed B. What information collection activity
recommends that you include your or ICR does this apply to?
A. For All ICRs
name and other contact information in In compliance with the Paperwork
the body of your comment and with any The Agency computed the burden for Reduction Act (44 U.S.C. 3501 et seq.),
disk or CD–ROM you submit. If EPA each of the recordkeeping and reporting this notice announces that EPA is
cannot read your comment due to requirements applicable to the industry planning to submit thirty-one proposed
technical difficulties and cannot contact for the currently approved ICRs listed in continuing Information Collection
you for clarification, EPA may not be this notice. Where applicable, the Requests (ICR) to the Office of
able to consider your comment. Agency identified specific tasks and Management and Budget (OMB):
Electronic files should avoid the use of made assumptions, while being (1) Docket ID Number: EPA–HQ–
special characters, any form of consistent with the concept of the PRA. OECA–2010–0341.
encryption, and be free of any defects or Title: NESHAP for Automobile and
Burden means the total time, effort, or
viruses. For additional information Light-duty Truck Surface Coating (40
financial resources expended by persons
about EPA’s public docket, visit the EPA CFR Part 63, Subpart IIII).
Docket Center homepage at http:// to generate, maintain, retain, or disclose
or provide information to or for a ICR Numbers: EPA ICR Number
www.epa.gov/epahome/dockets.htm. 2045.04, OMB Control Number 2060–
Federal agency. This includes the time
B. What information is EPA needed to review instructions to: 0550.
particularly interested in? develop, acquire, install, and utilize ICR Status: This ICR is scheduled to
technology and systems for the purposes expire on October 31, 2010.
Pursuant to section 3506(c)(2)(A) of (2) Docket ID Number: EPA–HQ–
the Paperwork Reduction Act (PRA), of collecting, validating, and verifying
information, processing and OECA–2010–0340.
EPA is soliciting comments and Title: NESHAP for Plywood and
information to enable it to: maintaining information, and disclosing
and providing information; adjust the Composite Products (40 CFR Part 63,
(1) Evaluate whether the proposed
existing ways to comply with any Subpart DDDD).
collections of information are necessary ICR Numbers: EPA ICR Number
for the proper performance of the previously applicable instructions and
1984.04, OMB Control Number 2060–
functions of the Agency, including requirements which have subsequently
0552.
whether the information will have changed; train personnel to be able to
ICR Status: This ICR is scheduled to
practical utility. respond to a collection of information;
expire on October 31, 2010.
(2) Evaluate the accuracy of the search data sources; complete and (3) Docket ID Number: EPA–HQ–
Agency’s estimates of the burdens of the review the collection of information; OECA–2010–0360.
proposed collections of information. and transmit or otherwise disclose the Title: NSPS for Stationary Gas
(3) Enhance the quality, utility, and information. Turbines (40 CFR Part 60, Subpart GG).
clarity of the information to be The listed ICRs address Clean Air Act ICR Numbers: EPA ICR Number
collected. information collection requirements in 1071.10, OMB Control Number 2060–
(4) Minimize the burden of the
standards (i.e., regulations) which have 0028.
collections of information on those who
mandatory recordkeeping and reporting ICR Status: This ICR is scheduled to
are to respond, including through the
requirements. Records collected under expire on October 31, 2010.
use of appropriate automated or
the New Source Performance Standards (4) Docket ID Number: EPA–HQ–
electronic collection technologies or
(NSPS) must be retained by the owner OECA–2010–0375.
other forms of information technology, Title: NESHAP for Petroleum
or operator for at least two years and the
e.g., permitting electronic submission of
records collected under the National Refineries (40 CFR Part 63, Subpart
responses.
Emission Standards for Hazardous Air UUU).
C. What should I consider when I Pollutants (NESHAP) must be retained ICR Numbers: EPA ICR Number
prepare my comments for EPA? by the owner or operator for at least five 1844.04, OMB Control Number 2060–
You may find the following years. In general, the required 0554.
suggestions helpful for preparing collections consist of emissions data ICR Status: This ICR is scheduled to
comments: and other information deemed not to be expire on October 31, 2010.
(1) Explain your views as clearly as private. (5) Docket ID Number: EPA–HQ–
possible and provide specific examples. OECA–2010–0370.
In the absence of such information
(2) Describe any assumptions that you Title: Air Emission Standards for
collection requirements, enforcement
used. Tanks, Surface Impoundments and
personnel would be unable to determine
(3) Provide copies of any technical Containers (40 CFR Part 264, Subpart
whether the standards are being met on
information and/or data you used that CC and 40 CFR Part 265).
a continuous basis as required by the ICR Numbers: EPA ICR Number
support your views. Clean Air Act.
(4) If you estimate potential burden or 1593.08, OMB Control Number 2060–
costs, explain how you arrived at the An Agency may not conduct or 0318.
estimate that you provide. sponsor, and a person is not required to ICR Status: This ICR is scheduled to
(5) Offer alternative ways to improve respond to, a collection of information, expire on October 31, 2010.
the collection activity. unless the Agency displays a currently (6) Docket ID Number: EPA–HQ–
(6) Make sure to submit your valid OMB control number. The OMB OECA–2010–0350.
comments by the deadline identified control numbers for EPA’s regulations Title: NESHAP for Area Sources:
under DATES. under Title 40 of the Code of Federal Acrylic and Modacrylic Fibers
(7) To ensure proper receipt by EPA, Regulations are published in the Production, Carbon Black Production,
be sure to identify the docket ID number Federal Register, or on the related Chemical Manufacturing: Chromium
assigned to this action in the subject collection instrument or form. The Compounds, Flexible Polyurethane
line on the first page of your response. display of OMB control numbers for Foam Production and Fabrication, Lead
You may also provide the name, date, certain EPA regulations is consolidated Acid Battery Manufacturing, and Wood
and Federal Register citation. at 40 CFR part 9. Preserving.
ICR Numbers: EPA ICR Number ICR Numbers: EPA ICR Number Title: NSPS for Stationary Spark
2256.03, OMB Control Number 2060– 1854.07, OMB Control Number 2060– Ignition Internal Combustion Engines
0598. 0443. (40 CFR Part 60, Subpart JJJJ).
ICR Status: This ICR is scheduled to ICR Status: This ICR is scheduled to ICR Numbers: EPA ICR Number
expire on October 31, 2010. expire on January 31, 2011. 2227.03, OMB Control Number 2060–
(7) Docket ID Number: EPA–HQ– (14) Docket ID Number: EPA–HQ– 0610.
OECA–2010–0373. OECA–2010–0355. ICR Status: This ICR is scheduled to
Title: NESHAP for Aerospace Title: NESHAP for Beryllium (40 CFR expire on March 31, 2011.
Manufacturing and Rework Facilities Part 61, Subpart C). (21) Docket ID Number: EPA–HQ–
(40 CFR Part 63, Subpart GG). ICR Numbers: EPA ICR Number OECA–2010–0356.
ICR Numbers: EPA ICR Number 0193.10, OMB Control Number 2060– Title: NSPS for Asphalt Processing
1687.08, OMB Control Number 2060– 0092. and Roofing Manufacture, (40 CFR Part
0314. ICR Status: This ICR is scheduled to 60, Subpart UU).
ICR Status: This ICR is scheduled to expire on January 31, 2011. ICR Numbers: EPA ICR Number
expire on November 30, 2010. (15) Docket ID Number: EPA–HQ– 0661.10, OMB Control Number 2060–
(8) Docket ID Number: EPA–HQ– OECA–2010–0365. 0002.
OECA–2010–0367. Title: NSPS for VOC Emissions From ICR Status: This ICR is scheduled to
Title: NSPS for New Residential Wood Petroleum Refinery Wastewater Systems expire on April 30, 2011.
Heaters (40 CFR Part 60, Subpart AAA). (40 CFR Part 60, Subpart QQQ). (22) Docket ID Number: EPA–HQ–
ICR Numbers: EPA ICR Number ICR Numbers: EPA ICR Number OECA–2010–0374.
1176.09, OMB Control Number 2060– 1136.10, OMB Control Number 2060– Title: NESHAP for Primary Aluminum
0161. 0172. Reduction Plants (40 CFR Part 63,
ICR Status: This ICR is scheduled to ICR Status: This ICR is scheduled to Subpart LL).
expire on December 31, 2010. expire on February 28, 2011. ICR Numbers: EPA ICR Number
(9) Docket ID Number: EPA–HQ– (16) Docket ID Number: EPA–HQ– 1767.06, OMB Control Number 2060–
OECA–2010–0359. OECA–2010–0363. 0360.
Title: NSPS for Electric Utility Steam Title: NSPS for Onshore Natural Gas ICR Status: This ICR is scheduled to
Generating Units (40 CFR Part 60, Processing Plants (40 CFR Part 60, expire on April 30, 2011.
Subpart Da). Subparts KKK & LLL). (23) Docket ID Number: EPA–HQ–
ICR Numbers: EPA ICR Number OECA–2010–0351.
ICR Numbers: EPA ICR Number
1086.09, OMB Control Number 2060– Title: NESHAP for Paint Stripping and
0120. Miscellaneous Surface Coating
0023. ICR Status: This ICR is scheduled to Operations Area Sources (40 CFR Part
ICR Status: This ICR is scheduled to
expire on February 28, 2011. 63, Subpart HHHHHH).
expire on January 31, 2011. (17) Docket ID Number: EPA–HQ– ICR Numbers: EPA ICR Number
(10) Docket ID Number: EPA–HQ– OECA–2010–0361. 2268.03, OMB Control Number 2060–
OECA–2010–0362. Title: NESHAP for Benzene Emissions 0607
Title: NSPS for Phosphate Rock Plants From Benzene Storage Vessels & Coke ICR Status: This ICR is scheduled to
(40 CFR Part 60, Subpart NN). By Product Recovery Plants (40 CFR expire on April 30, 2011.
ICR Numbers: EPA ICR Number Part 61, Subparts L & Y). (24) Docket ID Number: EPA–HQ–
1078.09, OMB Control Number 2060– ICR Numbers: EPA ICR Number OECA–2010–0372.
0111. 1080.13, OMB Control Number 2060– Title: NESHAP for Epoxy Resin and
ICR Status: This ICR is scheduled to 0185. Non-Nylon Polyamide Production (40
expire on January 31, 2011. ICR Status: This ICR is scheduled to CFR Part 63, Subpart W).
(11) Docket ID Number: EPA–HQ– expire on February 28, 2011. ICR Numbers: EPA ICR Number
OECA–2010–0369. (18) Docket ID Number: EPA–HQ– 1681.07, OMB Control Number 2060–
Title: NSPS for Small Industrial- OECA–2010–0357. 0290.
Commercial-Institutional Steam Title: NSPS for Equipment Leaks of ICR Status: This ICR is scheduled to
Generating Units (40 CFR Part 60, VOC in Petroleum Refineries (40 CFR expire on May 31, 2011.
Subpart Dc). Part 60, Subpart GGG and GGGa). (25) Docket ID Number: EPA–HQ–
ICR Numbers: EPA ICR Number ICR Numbers: EPA ICR Number OECA–2010–0364.
1564.08, OMB Control Number 2060– 0983.12, OMB Control Number 2060– Title: NESHAP for Beryllium Rocket
0202. 0067. Motor Fuel Firing (40 CFR Part 61,
ICR Status: This ICR is scheduled to ICR Status: This ICR is scheduled to Subpart D).
expire on January 31, 2011. expire on February 28, 2011. ICR Numbers: EPA ICR Number
(12) Docket ID Number: EPA–HQ– (19) Docket ID Number: EPA–HQ– 1125.06, OMB Control Number 2060–
OECA–2010–0366. OECA–2010–0352. 0394.
Title: NSPS for Rubber Tire Title: NESHAP for Clay Ceramics ICR Status: This ICR is scheduled to
Manufacturing (40 CFR Part 60, Subpart Manufacturing, Glass Manufacturing, expire on May 31, 2011.
BBB). and Secondary Nonferrous Metals (26) Docket ID Number: EPA–HQ–
ICR Numbers: EPA ICR Number Processing Area Sources (40 CFR Part OECA–2010–0354.
1158.10, OMB Control Number 2060– 63, Subpart RRRRRR, SSSSSS and Title: NESHAP for Vinyl Chloride (40
0156. TTTTTT). CFR Part 61, Subpart F).
ICR Status: This ICR is scheduled to ICR Numbers: EPA ICR Number ICR Numbers: EPA ICR Number
expire on January 31, 2011. 2274.03, OMB Control Number 2060– 0186.12, OMB Control Number 2060–
(13) Docket ID Number: EPA–HQ– 0606. 0071.
OECA–2010–0376. ICR Status: This ICR is scheduled to ICR Status: This ICR is scheduled to
Title: Recordkeeping and Reporting expire on March 31, 2011. expire on May 31, 2011.
Requirements of the Consolidated (20) Docket ID Number: EPA–HQ– (27) Docket ID Number: EPA–HQ–
Federal Air Rule for the SOCMI. OECA–2010–0347. OECA–2010–0358.
Title: NSPS for Portland Cement Williams of the Office of Compliance (11) NSPS for Small Industrial-
Plants (40 CFR Part 60, Subpart F). (202) 564–4113 or via e-mail to Commercial-Institutional Steam
ICR Numbers: EPA ICR Number williams.learia@epa.gov; EPA ICR Generating Units (40 CFR part 60,
1051.11, OMB Control Number 2060– Number 1071.10, OMB Control Number subpart Dc); Learia Williams of the
0025. 2060–0028; expiration October 31, 2010. Office of Compliance (202) 564–4113 or
ICR Status: This ICR is scheduled to (4) NESHAP for Petroleum Refineries via e-mail to williams.learia@epa.gov;
expire on July 31, 2011. (40 CFR part 63, subpart UUU); Robert EPA ICR Number 1564.08, OMB Control
(28) Docket ID Number: EPA–HQ– Marshall, Jr. of the Office of Compliance Number 2060–0202; expiration January
OECA–2010–0368. (202) 564–7021 or via e-mail to 31, 2011.
Title: NSPS for Polymeric Coating of marshall.robert@epa.gov; EPA ICR (12) NSPS for Rubber Tire
Supporting Substrates Facilities (40 CFR Number 1844.04, OMB Control Number Manufacturing (40 CFR part 60, Subpart
Part 60, Subpart VVV). 2060–0554; expiration date October 31, BBB); Learia Williams of the Office of
ICR Numbers: EPA ICR Number 2010. Compliance (202) 564–4113 or via e-
1284.09, OMB Control Number 2060– (5) Air Emission Standards for Tanks, mail to williams.learia@epa.gov; EPA
0181. Surface Impoundments and Containers ICR Number 1158.10, OMB Control
ICR Status: This ICR is scheduled to (40 CFR part 264, subpart CC and 40 Number 2060–0156; expiration date
expire on July 31, 2011. CFR part 265); Learia Williams of the January 31, 2011.
(29) Docket ID Number: EPA–HQ– Office of Compliance (202) 564–4113 or (13) Recordkeeping and Reporting
OECA–2010–0371. via e-mail to williams.learia@epa.gov; Requirements of the Consolidated
Title: NESHAP for Marine Tank EPA ICR Number 1593.08, OMB Control Federal Air Rule for the SOCMI; Robert
Vessel Loading Operations (40 CFR Part Number 2060–0318; expiration date Marshall, Jr. of the Office of Compliance
63, Subpart Y). October 31, 2010. (202) 564–7021 or via e-mail to
ICR Numbers: EPA ICR Number (6) NESHAP for Area Sources: Acrylic marshall.robert@epa.gov; EPA ICR
1679.07, OMB Control Number 2060– Number 1854.07, OMB Control Number
and Modacrylic Fibers Production,
0289. 2060–0443; expiration January 31, 2011.
Carbon Black Production, Chemical
ICR Status: This ICR is scheduled to (14) NESHAP for Beryllium (40 CFR
Manufacturing: Chromium Compounds, part 61, subpart C); Learia Williams of
expire on July 31, 2011.
Flexible Polyurethane Foam Production the Office of Compliance (202) 564–
(30) Docket ID Number: EPA–HQ–
and Fabrication, Lead Acid Battery 4113 or via e-mail to
OECA–2010–0377.
Manufacturing, and Wood Preserving; williams.learia@epa.gov; EPA ICR
Title: NESHAP for Solvent Extraction
Learia Williams of the Office of Number 0193.10, OMB Control Number
for Vegetable Oil Production (40 CFR
Compliance (202) 564–4113 or via e- 2060–0092; expiration January 31, 2011.
Part 63, Subpart GGGG).
mail to williams.learia@epa.gov; EPA (15) NSPS for VOC Emissions from
ICR Numbers: EPA ICR Number
ICR Number 2256.03, OMB Control Petroleum Refinery Wastewater Systems
Number 2060–0598; expiration (40 CFR part 60, subpart QQQ); Robert
0471.
ICR Status: This ICR is scheduled to October 31, 2010. Marshall, Jr. of the Office of Compliance
expire on July 31, 2011. (7) NESHAP for Aerospace (202) 564–7021 or via e-mail to
(31) Docket ID Number: EPA–HQ– Manufacturing and Rework Facilities marshall.robert@epa.gov; EPA ICR
OECA–2010–0353. (40 CFR part 63, subpart GG); Learia Number 1136.10, OMB Control Number
Title: NESHAP for Electric Arc Williams of the Office of Compliance 2060–0172; expiration February 28,
Furnace Steelmaking Facilities Area (202) 564–4113 or via e-mail to 2011.
Sources (40 CFR Part 63, Subpart williams.learia@epa.gov; EPA ICR (16) NSPS for Onshore Natural Gas
YYYYYY). Number 1687.08, OMB Control Number Processing Plants (40 CFR part 60,
ICR Numbers: EPA ICR Number 2060–0314; expiration date subparts KKK & LLL); Robert Marshall,
2277.03, OMB Control Number 2060– November 30, 2010. Jr. of the Office of Compliance (202)
0608. (8) NSPS for New Residential Wood 564–7021 or via e-mail to
ICR Status: This ICR is scheduled to Heaters (40 CFR Part 60, Subpart AAA); marshall.robert@epa.gov; EPA ICR
expire on July 31, 2011. Learia Williams of the Office of Number 1086.09, OMB Control Number
Compliance (202) 564–4113 or via e- 2060–0120; expiration February 28,
C. Contact Individuals for ICRs mail to williams.learia@epa.gov; EPA 2011.
(1) NESHAP for Automobile and ICR Number 1176.09, OMB Control (17) NESHAP for Benzene Emissions
Light-duty Truck Surface Coating (40 Number 2060–0161; expiration From Benzene Storage Vessels & Coke
CFR part 63, subpart IIII); Learia December 31, 2010. By Product Recovery Plants (40 CFR
Williams of the Office of Compliance (9) NSPS for Electric Utility Steam part 61, subparts L & Y); Learia Williams
(202) 564–4113 or via e-mail to Generating Units (40 CFR part 60, of the Office of Compliance (202) 564–
williams.learia@epa.gov; EPA ICR subpart Da); Robert Marshall, Jr. of the 4113 or via e-mail to
Number 2045.04, OMB Control Number Office of Compliance (202) 564–7021 or williams.learia@epa.gov; EPA ICR
2060–0550; expiration date October 31, via e-mail to marshall.robert@epa.gov; Number 1080.13, OMB Control Number
2010. EPA ICR Number 1053.10, OMB Control 2060–0185; expiration February 28,
(2) NESHAP for Plywood and Number 2060–0023; expiration January 2011.
Composite Products (40 CFR part 63, 31, 2011. (18) NSPS for Equipment Leaks of
subpart DDDD); Learia Williams of the (10) NSPS for Phosphate Rock Plants VOC in Petroleum Refineries (40 CFR
Office of Compliance (202) 564–4113 or (40 CFR Part 60, Subpart NN); Robert part 60, subpart GGG and GGGa); Robert
via e-mail to williams.learia@epa.gov; Marshall, Jr. of the Office of Compliance Marshall, Jr. of the Office of Compliance
EPA ICR Number 1984.04, OMB Control (202) 564–7021 or via e-mail to (202) 564–7021 or via e-mail to
Number 2060–0552; expiration marshall.robert@epa.gov; EPA ICR marshall.robert@epa.gov; EPA ICR
October 31, 2010. Number 1078.09, OMB Control Number Number 0983.12, OMB Control Number
(3) NSPS for Stationary Gas Turbines 2060–0111; expiration date January 31, 2060–0067; expiration February 28,
(40 CFR part 60, subpart GG); Learia 2011. 2011.
(19) NESHAP for Clay Ceramics Marshall, Jr. of the Office of Compliance Burden Statement: The annual public
Manufacturing, Glass Manufacturing, (202) 564–7021 or via e-mail to reporting and recordkeeping burden for
and Secondary Nonferrous Metals marshall.robert@epa.gov; EPA ICR this collection of information is
Processing Area Sources (40 CFR part Number 1051.11, OMB Control Number estimated to average 91 hours per
63, subpart RRRRRR, SSSSSS and 2060–0025; expiration July 31, 2011. response.
TTTTTT); Learia Williams of the Office (28) NSPS for Polymeric Coating of Respondents/Affected Entities:
of Compliance (202) 564–4113 or via e- Supporting Substrates Facilities (40 CFR Owners or operators of automobile and
mail to williams.learia@epa.gov; EPA part 60, subpart VVV); Learia Williams light-duty truck surface coating
ICR Number 2274.03, OMB Control of the Office of Compliance (202) 564– facilities.
Number 2060–0606; expiration March 4113 or via e-mail to Estimated Number of Respondents:
31, 2011. williams.learia@epa.gov; EPA ICR 65.
(20) NSPS for Stationary Spark Number 1284.09, OMB Control Number Frequency of Response: Initially,
Ignition Internal Combustion Engines 2060–0181; expiration July 31, 2011. semiannually and on-occasion.
(40 CFR part 60, subpart JJJJ); Learia (29) NESHAP for Marine Tank Vessel Estimated Total Annual Hour Burden:
Williams of the Office of Compliance Loading Operations (40 CFR part 63, 25,190.
(202) 564–4113 or via e-mail to subpart Y); Robert Marshall, Jr. of the Estimated Total Annual Cost:
williams.learia@epa.gov; EPA ICR Office of Compliance (202) 564–7021 or $2,321,787, which includes $2,243,787
Number 2227.03, OMB Control Number via e-mail to marshall.robert@epa.gov; in labor costs, no capital/startup costs
2060–0610; expiration March 31, 2011. EPA ICR Number 1679.07, OMB Control and $78,000 in operating and
(21) NSPS for Asphalt Processing and Number 2060–0289; expiration July 31, maintenance costs.
Roofing Manufacture, (40 CFR part 60, 2011. (2) NESHAP for Plywood and
subpart UU); Robert Marshall, Jr. of the (30) NESHAP for Solvent Extraction Composite Products (40 CFR Part 63,
Office of Compliance (202) 564–7021 or for Vegetable Oil Production (40 CFR Subpart DDDD), Docket ID Number:
via e-mail to marshall.robert@epa.gov; part 63, subpart GGGG); Learia Williams EPA–HQ–OECA–2010–0340, EPA ICR
EPA ICR Number 0661.10, OMB Control of the Office of Compliance (202) 564– Number 1984.04, OMB Control Number
Number 2060–0002; expiration April 30, 4113 or via e-mail to 2060–0552, expiration October 31, 2010.
2011. Affected Entities: Entities potentially
williams.learia@epa.gov; EPA ICR
(22) NESHAP for Primary Aluminum affected by this action are the owners or
Number 1947.05, OMB Control Number
Reduction Plants (40 CFR part 63, operators of plywood and composite
2060–0471; expiration July 31, 2011.
subpart LL); Robert Marshall, Jr. of the (31) NESHAP for Electric Arc Furnace products facilities.
Abstract: The affected entities are
Office of Compliance (202) 564–7021 or Steelmaking Facilities Area Sources (40
subject to the General Provisions of the
via e-mail to marshall.robert@epa.gov; CFR part 63, subpart YYYYYY); Learia
NESHAP at 40 CFR part 63, subpart A,
EPA ICR Number 1767.06, OMB Control Williams of the Office of Compliance
and any changes, or additions to the
Number 2060–0360; expiration April 30, (202) 564–4113 or via e-mail to
General Provisions specified at 40 CFR
2011. williams.learia@epa.gov; EPA ICR
(23) NESHAP for Paint Stripping and part 63, subpart DDDD.
Number 2277.03, OMB Control Number Owners or operators of the affected
Miscellaneous Surface Coating 2060–0608; expiration July 31, 2011. facilities must submit a one-time-only
Operations Area Sources (40 CFR part
D. Information for Individual ICRs report of any physical or operational
63, subpart HHHHHH); Robert Marshall,
changes, initial performance tests, and
Jr. of the Office of Compliance (202) (1) NESHAP for Automobile and
periodic reports and results. Owners or
564–7021 or via e-mail to Light-duty Truck Surface Coating (40
operators are also required to maintain
marshall.robert@epa.gov; EPA ICR CFR part 63, subpart IIII), Docket ID
records of the occurrence and duration
Number 2268.03, OMB Control Number Number: EPA–HQ–OECA–2010–0341,
of any startup, shutdown, or
2060–0607; expiration April 30, 2011. EPA ICR Number 2045.04, OMB Control
malfunction in the operation of an
(24) NESHAP for Epoxy Resin and Number 2060–0550, expiration October
affected facility, or any period during
Non-Nylon Polyamide Production (40 31, 2010.
which the monitoring system is
CFR part 63, subpart W); Learia Affected Entities: Entities potentially
inoperative. Reports, at a minimum, are
Williams of the Office of Compliance affected by this action are the owners or
required semiannually.
(202) 564–4113 or via e-mail to operators of automobile and light-duty Burden Statement: The annual public
williams.learia@epa.gov; EPA ICR truck surface coating facilities. reporting and recordkeeping burden for
Number 1681.07, OMB Control Number Abstract: The affected entities are
this collection of information is
2060–0290; expiration May 31, 2011. subject to the General Provisions of the
estimated to average 22 hours per
(25) NESHAP for Beryllium Rocket NESHAP at 40 CFR part 63, subpart A,
response.
Motor Fuel Firing (40 CFR part 61, and any changes, or additions to the Respondents/Affected Entities:
subpart D); Robert Marshall, Jr. of the General Provisions specified at 40 CFR Owners or operators of plywood and
Office of Compliance (202) 564–7021 or part 63, subpart IIII. composite products facilities.
via e-mail to marshall.robert@epa.gov; Owners or operators of the affected Estimated Number of Respondents:
EPA ICR Number 1125.06, OMB Control facilities must submit a one-time-only 228.
Number 2060–0394; expiration May 31, report of any physical or operational Frequency of Response: Initially and
2011. changes, initial performance tests, and semiannually.
(26) NESHAP for Vinyl Chloride (40 periodic reports and results. Owners or Estimated Total Annual Hour Burden:
CFR part 61, subpart F); Learia Williams operators are also required to maintain 12,732.
of the Office of Compliance (202) 564– records of the occurrence and duration Estimated Total Annual Cost:
4113 or via e-mail to of any startup, shutdown, or $1,651,907, which includes $1,207,585
williams.learia@epa.gov; EPA ICR malfunction in the operation of an in labor costs, $428,640 in capital/
Number 0186.12, OMB Control Number affected facility, or any period during startup costs and $15,682 in operating
2060–0071; expiration May 31, 2011. which the monitoring system is and maintenance costs.
(27) NSPS for Portland Cement Plants inoperative. Reports, at a minimum, are (3) NSPS for Stationary Gas Turbines
(40 CFR part 60, subpart F); Robert required semiannually. (40 CFR part 60, subpart GG), Docket ID
Number: EPA–HQ–OECA–2010–0360, of any startup, shutdown, or $45,214,335 in labor costs, no capital/

EPA ICR Number 1071.10, OMB Control malfunction in the operation of an startup costs and $12,418,000 in
Number 2060–0028, expiration October affected facility, or any period during operating and maintenance costs.
31, 2010. which the monitoring system is (6) NESHAP for Area Sources: Acrylic
Affected Entities: Entities potentially inoperative. Reports, at a minimum, are and Modacrylic Fibers Production,
affected by this action are the owners or required semiannually. Carbon Black Production, Chemical
operators of stationary gas turbines. Burden Statement: The annual public Manufacturing: Chromium Compounds,
Abstract: The affected entities are reporting and recordkeeping burden for Flexible Polyurethane Foam Production
subject to the General Provisions of the this collection of information is and Fabrication, Lead Acid Battery
NESHAP at 40 CFR part 60, subpart A, estimated to average 42 hours per Manufacturing, and Wood Preserving,
and any changes, or additions to the response. Docket ID Number: EPA–HQ–OECA–
General Provisions specified at 40 CFR Respondents/Affected Entities: 2010–0350, EPA ICR Number 2256.03,
part 60, subpart GG. Owners or operators of catalytic OMB Control Number 2060–0598,
Owners or operators of the affected cracking, reforming or sulfur units at expiration October 31, 2010.
facilities must submit a one-time-only petroleum refineries. Affected Entities: Entities potentially
report of any physical or operational Estimated Number of Respondents: affected by this action are the owners or
changes, initial performance tests, and 132. operators of facilities involved with
periodic reports and results. Owners or Frequency of Response: Initially and acrylic and modacrylic fibers
operators are also required to maintain semiannually. production, carbon black production,
records of the occurrence and duration Estimated Total Annual Hour Burden: chemical manufacturing: chromium
of any startup, shutdown, or 11,040. compounds, flexible polyurethane foam
malfunction in the operation of an Estimated Total Annual Cost: production and fabrication, lead acid
affected facility, or any period during $7,833,941, which includes $983,339 in battery manufacturing, and wood
which the monitoring system is labor costs, no capital/startup costs and preserving.
inoperative. Reports, at a minimum, are $6,850,602 in operating and Abstract: The affected entities are
required semiannually. maintenance costs. subject to the General Provisions of the
Burden Statement: The annual public (5) Air Emission Standards for Tanks, NESHAP at 40 CFR part 63, subpart A,
reporting and recordkeeping burden for Surface Impoundments and Containers and any changes, or additions to the
this collection of information is (40 CFR part 264, subpart CC and 40 General Provisions specified at 40 CFR
estimated to average 56 hours per CFR part 265), Docket ID Number: EPA– part 63, subparts LLLLLL, MMMMMM,
response. HQ–OECA–2010–0370, EPA ICR NNNNNN, OOOOOO, PPPPPP and
Respondents/Affected Entities: Number 1593.08, OMB Control Number QQQQQQ.
Owners or operators of stationary gas 2060–0318, expiration October 31, 2010. Owners or operators of the affected
turbines. Affected Entities: Entities potentially
facilities must submit a one-time-only
Estimated Number of Respondents: affected by this action are the owners or
report of any physical or operational
535. operators of tanks, surface
Frequency of Response: Initially, impoundments and containers.
periodic reports and results. Owners or
semiannually and on-occasion. Abstract: The affected entities are
Estimated Total Annual Hour Burden: operators are also required to maintain
subject to provisions specified at 40 CFR
59,519. records of the occurrence and duration
parts 264 and 265.
Estimated Total Annual Cost: Owners or operators of the affected of any startup, shutdown, or
$3,837,190, which includes $3,837,190 facilities must submit a one-time-only malfunction in the operation of an
in labor costs, no capital/startup costs report of any physical or operational affected facility, or any period during
and no operating and maintenance changes, initial performance tests, and which the monitoring system is
costs. periodic reports and results. Owners or inoperative. Reports, at a minimum, are
(4) NESHAP for Petroleum Refineries operators are also required to maintain required semiannually.
(40 CFR part 63, subpart UUU), Docket records of the occurrence and duration Burden Statement: The annual public
ID Number: EPA–HQ–OECA–2010– of any startup, shutdown, or reporting and recordkeeping burden for
0375, EPA ICR Number 1844.04, OMB malfunction in the operation of an this collection of information is
Control Number 2060–0554, expiration affected facility, or any period during estimated to average 12 hours per
October 31, 2010. which the monitoring system is response.
Affected Entities: Entities potentially inoperative. Reports, at a minimum, are Respondents/Affected Entities:
affected by this action are the owners or required semiannually. Owners or operators of facilities
operators of catalytic cracking, Burden Statement: The annual public involved with acrylic and modacrylic
reforming or sulfur units at petroleum reporting and recordkeeping burden for fibers production, carbon black
refineries. this collection of information is production, chemical manufacturing:
Abstract: The affected entities are estimated to average 114 hours per chromium compounds, flexible
subject to the General Provisions of the response. polyurethane foam production and
NESHAP at 40 CFR part 63, subpart A, Respondents/Affected Entities: fabrication, lead acid battery
and any changes, or additions to the Owners or operators of tanks, surface manufacturing, and wood preserving.
General Provisions specified at 40 CFR impoundments and containers. Estimated Number of Respondents:
part 63, subpart UUU. Estimated Number of Respondents: 957.
Owners or operators of the affected 6,209. Frequency of Response: Initially,

facilities must submit a one-time-only Frequency of Response: Initially and semiannually and on-occasion.
report of any physical or operational semiannually. Estimated Total Annual Hour Burden:
changes, initial performance tests, and Estimated Total Annual Hour Burden: 4,215.
periodic reports and results. Owners or 711,409. Estimated Total Annual Cost:
operators are also required to maintain Estimated Total Annual Cost: $358,127, which includes $357,327 in
records of the occurrence and duration $57,632,335, which includes labor costs, no capital/startup costs and
$800 in operating and maintenance Affected entities must, among other $14,320,248 in labor costs, $2,200,000
costs. requirements, submit initial in capital/startup costs and $10,155,000
(7) NESHAP for Aerospace performance tests reports, obtain in operating and maintenance costs.
Manufacturing and Rework Facilities certifications, perform quality assurance (10) NSPS for Phosphate Rock Plants
(40 CFR part 63, subpart GG), Docket ID activities, and record sales data. (40 CFR part 60, subpart NN), Docket ID
Number: EPA–HQ–OECA–2010–0373, Burden Statement: The annual public Number: EPA–HQ–OECA–2010–0362,
EPA ICR Number 1687.08, OMB Control reporting and recordkeeping burden for EPA ICR Number 1078.09, OMB Control
Number 2060–0314, expiration this collection of information is Number 2060–0111, expiration
November 30, 2010. estimated to average 51 hours per January 31, 2011.
Affected Entities: Entities potentially response. Affected Entities: Entities potentially
affected by this action are the owners or Respondents/Affected Entities: affected by this action are the owners or
operators of aerospace manufacturing Manufacturers, testing laboratories, and operators of phosphate rock plants.
and rework facilities. retailers of new residential wood Abstract: The affected entities are
Abstract: The affected entities are heaters. subject to the General Provisions of the
subject to the General Provisions of the Estimated Number of Respondents: NESHAP at 40 CFR part 60, subpart A,
NESHAP at 40 CFR part 63, subpart A, 934. and any changes, or additions to the
and any changes, or additions to the Frequency of Response: Initially and
General Provisions specified at 40 CFR on-occasion.
Estimated Total Annual Hour Burden: part 60, subpart NN.
part 63, subpart GG. Owners or operators of the affected
Owners or operators of the affected 141,018.
Estimated Total Annual Cost: facilities must submit a one-time-only
facilities must submit a one-time-only report of any physical or operational
report of any physical or operational $1,963,367, which includes $615,367 in
labor costs, $1,345,500 in capital/startup changes, initial performance tests, and
changes, initial performance tests, and periodic reports and results. Owners or
periodic reports and results. Owners or costs and $2,500 in operating and
maintenance costs. operators are also required to maintain
operators are also required to maintain records of the occurrence and duration
(9) NSPS for Electric Utility Steam
records of the occurrence and duration of any startup, shutdown, or
Generating Units (40 CFR part 60,
of any startup, shutdown, or malfunction in the operation of an
subpart Da), Docket ID Number: EPA–
malfunction in the operation of an affected facility, or any period during
HQ–OECA–2010–0359, EPA ICR
affected facility, or any period during which the monitoring system is
which the monitoring system is inoperative. Reports, at a minimum, are
2060–0023, expiration January 31, 2011.
inoperative. Reports, at a minimum, are Affected Entities: Entities potentially required semiannually.
required semiannually. affected by this action are the owners or Burden Statement: The annual public
Burden Statement: The annual public operators of electric utility steam reporting and recordkeeping burden for
reporting and recordkeeping burden for generating units. this collection of information is
this collection of information is Abstract: The affected entities are estimated to average 55 hours per
estimated to average 259 hours per subject to the General Provisions of the response.
response. NESHAP at 40 CFR part 60, subpart A, Respondents/Affected Entities:
Respondents/Affected Entities: and any changes, or additions to the Owners or operators of phosphate rock
Owners or operators of aerospace General Provisions specified at 40 CFR plants.
manufacturing and rework facilities part 60, subpart Da. Estimated Number of Respondents:
sulfur units at petroleum refineries. Owners or operators of the affected
Estimated Number of Respondents: 13.
facilities must submit a one-time-only Frequency of Response: Initially and
136. report of any physical or operational
Frequency of Response: Initially, semiannually.
changes, initial performance tests, and Estimated Total Annual Hour Burden:
semiannually and on-occasion. periodic reports and results. Owners or
Estimated Total Annual Hour Burden: 1,602.
operators are also required to maintain Estimated Total Annual Cost:
141,018. records of the occurrence and duration
Estimated Total Annual Cost: $226,427, which includes $102,245 in
of any startup, shutdown, or labor costs, $12,210 in capital/startup
$12,611,605, which includes malfunction in the operation of an
$12,575,605 in labor costs, no capital/ costs and $111,972 in operating and
affected facility, or any period during maintenance costs.
startup costs and $136,000 in operating which the monitoring system is
and maintenance costs. (11) NSPS for Small Industrial-
inoperative. Reports, at a minimum, are Commercial-Institutional Steam
(8) NSPS for New Residential Wood required semiannually.
Heaters (40 CFR part 60, subpart AAA), Generating Units (40 CFR part 60,
Burden Statement: The annual public
Docket ID Number: EPA–HQ–OECA– subpart Dc), Docket ID Number: EPA–
reporting and recordkeeping burden for
2010–0367, EPA ICR Number 1176.09, HQ–OECA–2010–0369, EPA ICR
OMB Control Number 2060–0161, Number 1564.08, OMB Control Number
expiration December 31, 2010. 2060–0202, expiration January 31, 2011.
response.
Affected Entities: Entities potentially Respondents/Affected Entities: Affected Entities: Entities potentially
affected by this action are the Owners or operators of electric utility affected by this action are the owners or
manufacturers, testing laboratories, and steam generating units. operators of small industrial-
retailers of new residential wood Estimated Number of Respondents: commercial-institutional steam
heaters. 677. generating units.

Abstract: The affected entities are Frequency of Response: Initially, Abstract: The affected entities are
subject to the General Provisions of the quarterly and semiannually. subject to the General Provisions of the
NESHAP at 40 CFR part 60, subpart A, Estimated Total Annual Hour Burden: NESHAP at 40 CFR part 60, subpart A,
and any changes, or additions to the 160,839. and any changes, or additions to the
General Provisions specified at 40 CFR Estimated Total Annual Cost: General Provisions specified at 40 CFR
part 60, subpart AAA. $26,675,248, which includes part 60, subpart Dc.
Owners or operators of the affected Respondents/Affected Entities: Under the CAR requirements
facilities must submit a one-time-only Owners or operators of rubber tire periodic, but less burdensome reporting
report of any physical or operational manufacturing plants. is required.
changes, initial performance tests, and Estimated Number of Respondents: Burden Statement: The annual public
periodic reports and results. Owners or 41. reporting and recordkeeping burden for
operators are also required to maintain Frequency of Response: Initially, this collection of information is
records of the occurrence and duration semiannually and annually. estimated to average 602 hours per
of any startup, shutdown, or Estimated Total Annual Hour Burden: response.
malfunction in the operation of an 13,323. Respondents/Affected Entities:
affected facility, or any period during Estimated Total Annual Cost: Owners or operators of synthetic organic
which the monitoring system is $866,493, which includes $850,093 in chemical manufacturing facilities.
inoperative. Reports, at a minimum, are labor costs, no capital/startup costs and Estimated Number of Respondents:
required semiannually. $16,400 in operating and maintenance 3,305.
costs. Frequency of Response: Initially, on-
Burden Statement: The annual public (13) Recordkeeping and Reporting occasion, semiannually and annually.
reporting and recordkeeping burden for Requirements of the Consolidated Estimated Total Annual Hour Burden:
this collection of information is Federal Air Rule for the SOCMI, Docket 1,988,903.
estimated to average 293 hours per ID Number: EPA–HQ–OECA–2010– Estimated Total Annual Cost:
response. 0376, EPA ICR Number 1854.07, OMB $241,054,751, which includes
Respondents/Affected Entities: Control Number 2060–0443, expiration $145,725,751 in labor costs, $3,373,000
Owners or operators of small industrial- January 31, 2011. capital/startup costs and $91,956,000 in
commercial-institutional steam Affected Entities: Entities potentially operating and maintenance costs.
generating units. affected by this action are the owners or (14) NESHAP for Beryllium (40 CFR
Estimated Number of Respondents: operators of synthetic organic chemical part 61, subpart C), Docket ID Number:
235. manufacturing facilities. EPA–HQ–OECA–2010–0355, EPA ICR
Frequency of Response: Initially, Abstract: The synthetic organic Number 0193.10, OMB Control Number
semiannually and on-occasion. chemical manufacturing industry 2060–0092, expiration January 31, 2011.
Estimated Total Annual Hour Burden: (SOCMI) is regulated by the New Source Affected Entities: Entities potentially
159,972. Performance Standards (NSPS) and affected by this action are the owners or
National Emission Standards for operators of beryllium producing
Estimated Total Annual Cost:
Hazardous Air Pollutants (NESHAP) facilities.
$19,653,054, which includes Abstract: The affected entities are
$10,206,909 in labor costs, $1,491,005 standards. The affected entities are
subject to the General Provisions of the subject to the General Provisions of the
in capital/startup costs and $7,955,160 NESHAP at 40 CFR part 61, subpart A,
in operating and maintenance costs. NSPS at 40 CFR part 60, subpart A, and
any changes or additions to the General and any changes, or additions to the
(12) NSPS for Rubber Tire General Provisions specified at 40 CFR
Manufacturing (40 CFR part 60, subpart Provisions specified at 40 CFR part 60,
subparts Ka, Kb, VV, DDD, III, NNN and part 61, subpart C.
BBB), Docket ID Number: EPA–HQ– Owners or operators of the affected
OECA–2010–0366, EPA ICR Number RRR. The affected entities are also
subject to the General Provisions of the facilities must submit a one-time-only
1158.10, OMB Control Number 2060– report of any physical or operational
0156, expiration January 31, 2011. NESHAP at 40 CFR part 63, subpart A,
Affected Entities: Entities potentially periodic reports and results. Owners or
affected by this action are the owners or operators are also required to maintain
part 63, subparts BB, Y, V, F, G, H and
operators of rubber tire manufacturing records of the occurrence and duration
I. As an alternative, SOCMI sources may
plants. of any startup, shutdown, or
choose to comply with the above
Abstract: The affected entities are malfunction in the operation of an
standards under the consolidated air
subject to the General Provisions of the affected facility, or any period during
rule (CAR) at 40 CFR Part 65 as
NESHAP at 40 CFR part 60, subpart A, which the monitoring system is
promulgated December 14, 2000.
and any changes, or additions to the inoperative.
Synthetic organic chemical
General Provisions specified at 40 CFR Burden Statement: The annual public
manufacturing facilities subject to NSPS reporting and recordkeeping burden for
part 60, subpart BBB. requirements must notify EPA of
Owners or operators of the affected this collection of information is
construction, modification, startups, estimated to average 16 hours per
facilities must submit a one-time-only shutdowns, date and results of initial
report of any physical or operational response.
performance test and excess emissions. Respondents/Affected Entities:
changes, initial performance tests, and Semiannual reports are also required. Owners or operators of beryllium
periodic reports and results. Owners or Synthetic organic chemical producing facilities.
operators are also required to maintain manufacturing facilities subject to Estimated Number of Respondents:
records of the occurrence and duration NESHAP requirements must submit 33.
of any startup, shutdown, or one-time-only reports of any physical or Frequency of Response: Monthly and
malfunction in the operation of an operational changes and the results of on-occasion.
affected facility, or any period during initial performance tests. Owners or Estimated Total Annual Hour Burden:
which the monitoring system is operators are also required to maintain 2,627.
inoperative. Reports, at a minimum, are records of the occurrence and duration Estimated Total Annual Cost:
required semiannually. of any startup, shutdown, or $201,160, which includes $166,160 in
Burden Statement: The annual public malfunction in the operation of an labor costs, no capital/startup costs and
reporting and recordkeeping burden for affected facility, or any period during $35,000 in operating and maintenance
this collection of information is which the monitoring system is costs.
estimated to average 167 hours per inoperative. Periodic reports are also (15) NSPS for VOC Emissions from
response. required, at a minimum, semiannually. Petroleum Refinery Wastewater Systems
(40 CFR part 60, subpart QQQ), Docket operators are also required to maintain Frequency of Response: Semiannually
ID Number: EPA–HQ–OECA–2010– records of the occurrence and duration and on-occasion.
0365, EPA ICR Number 1136.10, OMB of any startup, shutdown, or Estimated Total Annual Hour Burden:
Control Number 2060–0172, expiration malfunction in the operation of an 3,137.
February 28, 2011. affected facility, or any period during Estimated Total Annual Cost:
Affected Entities: Entities potentially which the monitoring system is $199,375, which includes $199,375 in
affected by this action are the owners or inoperative. Reports, at a minimum, are labor costs, no capital/startup costs and
operators of petroleum refinery required semiannually. no operating and maintenance costs.
wastewater systems. Burden Statement: The annual public (18) NSPS for Equipment Leaks of
Abstract: The affected entities are reporting and recordkeeping burden for VOC in Petroleum Refineries (40 CFR
subject to the General Provisions of the this collection of information is Part 60, Subpart GGG and GGGa),
NESHAP at 40 CFR part 60, subpart A, estimated to average 91 hours per Docket ID Number: EPA–HQ–OECA–
and any changes, or additions to the response. 2010–0357, EPA ICR Number 0983.12,
General Provisions specified at 40 CFR Respondents/Affected Entities: OMB Control Number 2060–0067,
part 60, subpart QQQ. Owners or operators of onshore natural expiration February 28, 2011.
Owners or operators of the affected gas processing plants. Affected Entities: Entities potentially
facilities must submit a one-time-only Estimated Number of Respondents: affected by this action are the owners or
report of any physical or operational 563. operators of petroleum refineries.
changes, initial performance tests, and Frequency of Response: Initially, Abstract: The affected entities are
periodic reports and results. Owners or semiannually and on-occasion. subject to the General Provisions of the
operators are also required to maintain Estimated Total Annual Hour Burden: NESHAP at 40 CFR part 60, subpart A,
records of the occurrence and duration 149,180. and any changes, or additions to the
of any startup, shutdown, or Estimated Total Annual Cost:
malfunction in the operation of an $9,857,058, which includes $9,518,358
part 60, subparts GGG and GGGa.
affected facility, or any period during in labor costs, $219,000 in capital/
Owners or operators of the affected
which the monitoring system is startup costs and $119,700 in operating
facilities must submit a one-time-only
inoperative. Reports, at a minimum, are and maintenance costs.
(17) NESHAP for Benzene Emissions report of any physical or operational
required semiannually. changes, initial performance tests, and
Burden Statement: The annual public From Benzene Storage Vessels & Coke
By Product Recovery Plants (40 CFR periodic reports and results. Owners or
reporting and recordkeeping burden for operators are also required to maintain
this collection of information is part 61, subparts L & Y), Docket ID
Number: EPA–HQ–OECA–2010–0361, records of the occurrence and duration
estimated to average 34 hours per of any startup, shutdown, or
response. EPA ICR Number 1080.13, OMB Control
Number 2060–0185, expiration February malfunction in the operation of an
Respondents/Affected Entities: affected facility, or any period during
Owners or operators of petroleum 28, 2011.
Affected Entities: Entities potentially which the monitoring system is
refinery wastewater systems. inoperative. Reports, at a minimum, are
Estimated Number of Respondents: affected by this action are the owners or
operators of benzene storage vessels and required semiannually.
135.
Frequency of Response: Initially, on- coke by product recovery plants. Burden Statement: The annual public
occasion, quarterly and semiannually. Abstract: The affected entities are reporting and recordkeeping burden for
Estimated Total Annual Hour Burden: subject to the General Provisions of the this collection of information is
9,237. NESHAP at 40 CFR part 61, subpart A, estimated to average 195 hours per
Estimated Total Annual Cost: and any changes, or additions to the response.
$840,360, which includes $822,810 in General Provisions specified at 40 CFR Respondents/Affected Entities:
labor costs, no capital/startup costs and part 61, subparts L and Y. Owners or operators of petroleum
$17,550 in operating and maintenance Owners or operators of the affected refineries.
costs. facilities must submit a one-time-only Estimated Number of Respondents:
(16) NSPS for Onshore Natural Gas report of any physical or operational 55.
Processing Plants (40 CFR part 60, changes, initial performance tests, and Frequency of Response: Initially,
subparts KKK & LLL), Docket ID periodic reports and results. Owners or semiannually and on-occasion.
Number: EPA–HQ–OECA–2010–0363, operators are also required to maintain Estimated Total Annual Hour Burden:
EPA ICR Number 1086.09, OMB Control records of the occurrence and duration 10,771.
Number 2060–0120, expiration February of any startup, shutdown, or Estimated Total Annual Cost:
28, 2011. malfunction in the operation of an $839,323, which includes $839,323 in
Affected Entities: Entities potentially affected facility, or any period during labor costs, no capital/startup costs and
affected by this action are the owners or which the monitoring system is no operating and maintenance costs.
operators of onshore natural gas inoperative. Reports, at a minimum, are (19) NESHAP for Clay Ceramics
processing plants. required semiannually. Manufacturing, Glass Manufacturing,
Abstract: The affected entities are Burden Statement: The annual public and Secondary Nonferrous Metals
subject to the General Provisions of the reporting and recordkeeping burden for Processing Area Sources (40 CFR part
NESHAP at 40 CFR part 60, subpart A, this collection of information is 63, subpart RRRRRR, SSSSSS and
and any changes, or additions to the estimated to average 92 hours per TTTTTT), Docket ID Number: EPA–HQ–
General Provisions specified at 40 CFR response. OECA–2010–0352, EPA ICR Number

part 60, subparts KKK & LLL. Respondents/Affected Entities: 2274.03, OMB Control Number 2060–
Owners or operators of the affected Owners or operators of benzene storage 0606, expiration March 31, 2011.
facilities must submit a one-time-only vessels and coke by product recovery Affected Entities: Entities potentially
report of any physical or operational plants. affected by this action are the owners or
changes, initial performance tests, and Estimated Number of Respondents: operators of clay ceramics
periodic reports and results. Owners or 17. manufacturing, glass manufacturing,
and secondary nonferrous metals malfunction in the operation of an in labor costs, $200,000 in capital/
processing area sources. affected facility, or any period during startup costs and $5,040,000 in
Abstract: The affected entities are which the monitoring system is operating and maintenance costs.
subject to the General Provisions of the inoperative. Reports, at a minimum, are (22) NESHAP for Primary Aluminum
NESHAP at 40 CFR part 63, subpart A, required semiannually. Reduction Plants (40 CFR Part 63,
and any changes, or additions to the Burden Statement: The annual public Subpart LL), Docket ID Number: EPA–
General Provisions specified at 40 CFR reporting and recordkeeping burden for HQ–OECA–2010–0374, EPA ICR
part 63, subparts RRRRRR, SSSSSS and this collection of information is Number 1767.06, OMB Control Number
TTTTTT. estimated to average one hour per 2060–0360, expiration April 30, 2011.
Owners or operators of the affected response. Affected Entities: Entities potentially
facilities must submit a one-time-only Respondents/Affected Entities: affected by this action are the owners or
report of any physical or operational Owners or operators of stationary spark operators of primary aluminum
changes, initial performance tests, and ignition internal combustion engines. reduction plants.
periodic reports and results. Owners or Estimated Number of Respondents: Abstract: The affected entities are
operators are also required to maintain 16,546. subject to the General Provisions of the
records of the occurrence and duration Frequency of Response: Initially,
of any startup, shutdown, or semiannually and on-occasion.
Estimated Total Annual Hour Burden: and any changes, or additions to the
malfunction in the operation of an General Provisions specified at 40 CFR
affected facility, or any period during 31,693.
Estimated Total Annual Cost: part 63, subpart LL.
which the monitoring system is Owners or operators of the affected
$17,730,929, which includes $9,905,877
inoperative. Reports, at a minimum, are facilities must submit a one-time-only
in labor costs, no capital/startup costs
required semiannually. report of any physical or operational
Burden Statement: The annual public and $7,825,052 in operating and
maintenance costs. changes, initial performance tests, and
reporting and recordkeeping burden for periodic reports and results. Owners or
(21) NSPS for Asphalt Processing and
this collection of information is operators are also required to maintain
Roofing Manufacture, (40 CFR part 60,
estimated to average 7 hours per records of the occurrence and duration
subpart UU), Docket ID Number: EPA–
response. HQ–OECA–2010–0356, EPA ICR of any startup, shutdown, or
Respondents/Affected Entities: malfunction in the operation of an
Owners or operators of owners or affected facility, or any period during
2060–0002, expiration April 30, 2011.
operators of clay ceramics Affected Entities: Entities potentially which the monitoring system is
manufacturing, glass manufacturing, affected by this action are the owners or inoperative. Reports, at a minimum, are
and secondary nonferrous metals operators of asphalt processing and required semiannually.
processing area sources. roofing manufacture facilities. Burden Statement: The annual public
Estimated Number of Respondents: Abstract: The affected entities are reporting and recordkeeping burden for
54. subject to the General Provisions of the this collection of information is
Frequency of Response: Initially, NESHAP at 40 CFR part 60, subpart A, estimated to average 2,001 hours per
semiannually and on-occasion. and any changes, or additions to the
Estimated Total Annual Hour Burden: response.
General Provisions specified at 40 CFR Respondents/Affected Entities:
395.
part 60, subpart UU. Owners or operators of primary
Estimated Total Annual Cost:
Owners or operators of the affected aluminum reduction plants.
$46,949, which includes $33,985 in facilities must submit a one-time-only
labor costs, $3,110 capital/startup costs Estimated Number of Respondents:
report of any physical or operational 16.
and $9,854 in operating and changes, initial performance tests, and
maintenance costs. Frequency of Response: Initially,
periodic reports and results. Owners or semiannually and annually.
(20) NSPS for Stationary Spark
operators are also required to maintain Estimated Total Annual Hour Burden:
Ignition Internal Combustion Engines
records of the occurrence and duration 80,046.
(40 CFR part 60, subpart JJJJ), Docket ID of any startup, shutdown, or
Number: EPA–HQ–OECA–2010–0347, Estimated Total Annual Cost:
malfunction in the operation of an $7,221,357, which includes $7,130,009
EPA ICR Number 2227.03, OMB Control affected facility, or any period during
Number 2060–0610, expiration March in labor costs, no capital/startup costs
which the monitoring system is and $91,348 in operating and
31, 2011. inoperative. Reports, at a minimum, are
Affected Entities: Entities potentially maintenance costs.
required semiannually. (23) NESHAP for Paint Stripping and
affected by this action are the owners or Burden Statement: The annual public
operators of stationary spark ignition Miscellaneous Surface Coating
reporting and recordkeeping burden for
internal combustion engines. Operations Area Sources (40 CFR part
Abstract: The affected entities are 63, subpart HHHHHH), Docket ID
subject to the General Provisions of the Number: EPA–HQ–OECA–2010–0351,
response.
NESHAP at 40 CFR part 60, subpart A, Respondents/Affected Entities: EPA ICR Number 2268.03, OMB Control
and any changes, or additions to the Owners or operators of asphalt Number 2060–0607, expiration April 30,
General Provisions specified at 40 CFR processing and roofing manufacture 2011.
part 60, subpart JJJ. facilities. Affected Entities: Entities potentially
Owners or operators of the affected Estimated Number of Respondents: affected by this action are the owners or
facilities must submit a one-time-only 144. operators of paint stripping and

report of any physical or operational Frequency of Response: Initially and miscellaneous surface coating
changes, initial performance tests, and semiannually. operations area sources.
periodic reports and results. Owners or Estimated Total Annual Hour Burden: Abstract: The affected entities are
operators are also required to maintain 33,912. subject to the General Provisions of the
records of the occurrence and duration Estimated Total Annual Cost: NESHAP at 40 CFR part 63, subpart A,
of any startup, shutdown, or $8,714,925, which includes $3,474,925 and any changes, or additions to the
General Provisions specified at 40 CFR estimated to average 214 hours per operators of vinyl chloride production
part 63, subpart HHHHHH. response. facilities.
Owners or operators of the affected Respondents/Affected Entities: Abstract: The affected entities are
facilities must submit a one-time-only Owners or operators of epoxy resin and subject to the General Provisions of the
report of any physical or operational non-nylon polyamide production NESHAP at 40 CFR part 61, subpart A,
changes, initial performance tests, and facilities. and any changes, or additions to the
periodic reports and results. Owners or Estimated Number of Respondents: 7. General Provisions specified at 40 CFR
operators are also required to maintain Frequency of Response: Initially, part 61, subpart F.
records of the occurrence and duration quarterly and semiannually. Owners or operators of the affected
of any startup, shutdown, or Estimated Total Annual Hour Burden: facilities must submit a one-time-only
malfunction in the operation of an 3,853. report of any physical or operational
affected facility, or any period during Estimated Total Annual Cost: changes, initial performance tests, and
which the monitoring system is $252,711, which includes $243,711 in periodic reports and results. Owners or
inoperative. Reports, at a minimum, are labor costs, no capital/startup costs and operators are also required to maintain
required semiannually. $9,000 in operating and maintenance records of the occurrence and duration
Burden Statement: The annual public costs. of any startup, shutdown, or
reporting and recordkeeping burden for (25) NESHAP for Beryllium Rocket malfunction in the operation of an
this collection of information is Motor Fuel Firing (40 CFR part 61, affected facility, or any period during
estimated to average 6 hours per subpart D), Docket ID Number: EPA– which the monitoring system is
response. HQ–OECA–2010–0364, EPA ICR inoperative. Reports, at a minimum, are
Respondents/Affected Entities: Number 1125.06, OMB Control Number required quarterly.
Owners or operators of paint stripping 2060–0394, expiration May 31, 2011. Burden Statement: The annual public
and miscellaneous surface coating Affected Entities: Entities potentially reporting and recordkeeping burden for
operations area sources. affected by this action are the owners or this collection of information is
Estimated Number of Respondents: operators of beryllium rocket motor fuel estimated to average 60 hours per
39,812. firing facilities. response.
Abstract: The affected entities are
Frequency of Response: Initially, Respondents/Affected Entities:
subject to the General Provisions of the
semiannually and on-occasion. Owners or operators of vinyl chloride
Estimated Total Annual Hour Burden: production facilities.
41,298. Estimated Number of Respondents:
Estimated Total Annual Cost: 28.
part 61, subpart D.
$10,179,392, which includes Owners or operators of the affected Frequency of Response: Initially,
$10,154,723 in labor costs, no capital/ facilities must submit a one-time-only quarterly and on-occasion.
startup costs and $24,669 in operating report of any physical or operational Estimated Total Annual Hour Burden:
and maintenance costs. changes, initial performance tests, and 11,825.
(24) NESHAP for Epoxy Resin and periodic reports and results. Owners or Estimated Total Annual Cost:
Non-Nylon Polyamide Production (40 operators are also required to maintain $2,014,515, which includes $754,515 in
CFR part 63, subpart W), Docket ID records of the occurrence and duration labor costs, no capital/startup costs and
Number: EPA–HQ–OECA–2010–0372, of any startup, shutdown, or $1,260,000 in operating and
EPA ICR Number 1681.07, OMB Control malfunction in the operation of an maintenance costs.
Number 2060–0290, expiration May 31, affected facility, or any period during (27) NSPS for Portland Cement Plants
2011. which the monitoring system is (40 CFR part 60, subpart F), Docket ID
Affected Entities: Entities potentially inoperative. Number: EPA–HQ–OECA–2010–0358,
affected by this action are the owners or Burden Statement: The annual public EPA ICR Number 1051.11, OMB Control
operators of epoxy resin and non-nylon reporting and recordkeeping burden for Number 2060–0025, expiration July 31,
polyamide production facilities. this collection of information is 2011.
Abstract: The affected entities are estimated to average 8 hours per Affected Entities: Entities potentially
subject to the General Provisions of the response. affected by this action are the owners or
NESHAP at 40 CFR part 63, subpart A, Respondents/Affected Entities: operators of portland cement plants.
and any changes, or additions to the Owners or operators of beryllium rocket Abstract: The affected entities are
General Provisions specified at 40 CFR motor fuel firing facilities. subject to the General Provisions of the
part 63, subpart W. Estimated Number of Respondents: 1. NESHAP at 40 CFR part 60, subpart A,
Owners or operators of the affected Frequency of Response: Initially and and any changes, or additions to the
facilities must submit a one-time-only annually. General Provisions specified at 40 CFR
report of any physical or operational Estimated Total Annual Hour Burden: part 60, subpart F.
changes, initial performance tests, and 8. Owners or operators of the affected
periodic reports and results. Owners or Estimated Total Annual Cost: $538, facilities must submit a one-time-only
operators are also required to maintain which includes $538 in labor costs, no report of any physical or operational
records of the occurrence and duration capital/startup costs and no operating changes, initial performance tests, and
of any startup, shutdown, or and maintenance costs. periodic reports and results. Owners or
malfunction in the operation of an (26) NESHAP for Vinyl Chloride (40 operators are also required to maintain
affected facility, or any period during CFR part 61, subpart F), Docket ID records of the occurrence and duration
which the monitoring system is Number: EPA–HQ–OECA–2010–0354, of any startup, shutdown, or
inoperative. Reports, at a minimum, are EPA ICR Number 0186.12, OMB Control malfunction in the operation of an
required semiannually. Number 2060–0071, expiration May 31, affected facility, or any period during
Burden Statement: The annual public 2011. which the monitoring system is
reporting and recordkeeping burden for Affected Entities: Entities potentially inoperative. Reports, at a minimum, are
this collection of information is affected by this action are the owners or required semiannually.
Burden Statement: The annual public (29) NESHAP for Marine Tank Vessel operators are also required to maintain
reporting and recordkeeping burden for Loading Operations (40 CFR part 63, records of the occurrence and duration
this collection of information is subpart Y), Docket ID Number: EPA– of any startup, shutdown, or
estimated to average 56 hours per HQ–OECA–2010–0371, EPA ICR malfunction in the operation of an
response. Number 1679.07, OMB Control Number affected facility, or any period during
Respondents/Affected Entities: 2060–0289, expiration July 31, 2011. which the monitoring system is
Owners or operators of rubber tire Affected Entities: Entities potentially inoperative. Reports, at a minimum, are
manufacturing plants. affected by this action are the owners or required semiannually.
Estimated Number of Respondents: operators of marine tank vessel loading Burden Statement: The annual public
118. operations. reporting and recordkeeping burden for
Frequency of Response: Initially and Abstract: The affected entities are this collection of information is
semiannually. subject to the General Provisions of the estimated to average 185 hours per
Estimated Total Annual Hour Burden: NESHAP at 40 CFR part 63, subpart A, response.
13,806. and any changes, or additions to the Respondents/Affected Entities:
Estimated Total Annual Cost: General Provisions specified at 40 CFR Owners or operators of rubber tire
$1,413,511, which includes $880,151 in part 63, subpart Y. manufacturing plants.
labor costs, $37,000 in capital/startup Owners or operators of the affected Estimated Number of Respondents:
costs and $495,000 in operating and facilities must submit a one-time-only 101.
maintenance costs. report of any physical or operational Frequency of Response: Initially, on-
(28) NSPS for Polymeric Coating of changes, initial performance tests, and occasion and annually.
Supporting Substrates Facilities (40 CFR periodic reports and results. Owners or Estimated Total Annual Hour Burden:
part 60, subpart VVV), Docket ID operators are also required to maintain 39,385.
Number: EPA–HQ–OECA–2010–0368, records of the occurrence and duration Estimated Total Annual Cost:
EPA ICR Number 1284.09, OMB Control of any startup, shutdown, or $2,512,947, which includes $2,512,947
Number 2060–0181, expiration July 31, malfunction in the operation of an in labor costs, no capital/startup costs
2011. affected facility, or any period during and no operating and maintenance
Affected Entities: Entities potentially which the monitoring system is costs.
affected by this action are the owners or inoperative. Reports, at a minimum, are (31) NESHAP for Electric Arc Furnace
operators of polymeric coating of required semiannually. Steelmaking Facilities Area Sources (40
supporting substrates facilities. Burden Statement: The annual public CFR part 63, subpart YYYYYY), Docket
Abstract: The affected entities are reporting and recordkeeping burden for ID Number: EPA–HQ–OECA–2010–
subject to the General Provisions of the this collection of information is 0353, EPA ICR Number 2277.03, OMB
NESHAP at 40 CFR part 60, subpart A, estimated to average 12 hours per Control Number 2060–0608, expiration
and any changes, or additions to the response. July 31, 2011.
General Provisions specified at 40 CFR Respondents/Affected Entities: Affected Entities: Entities potentially
part 60, subpart VVV. Owners or operators of marine tank affected by this action are the owners or
Owners or operators of the affected vessel loading operations. operators of electric arc furnace
facilities must submit a one-time-only Estimated Number of Respondents: steelmaking facilities.
report of any physical or operational 804. Abstract: The affected entities are
changes, initial performance tests, and Frequency of Response: Initially, subject to the General Provisions of the
periodic reports and results. Owners or semiannually and annually. NESHAP at 40 CFR part 63, subpart A,
operators are also required to maintain Estimated Total Annual Hour Burden: and any changes, or additions to the
records of the occurrence and duration 9,872. General Provisions specified at 40 CFR
of any startup, shutdown, or Estimated Total Annual Cost: part 63, subpart YYYYYY.
malfunction in the operation of an $629,850, which includes $629,850 in Owners or operators of the affected
affected facility, or any period during labor costs, no capital/startup costs and facilities must submit a one-time-only
which the monitoring system is no operating and maintenance costs. report of any physical or operational
inoperative. Reports, at a minimum, are (30) NESHAP for Solvent Extraction changes, initial performance tests, and
required semiannually. for Vegetable Oil Production (40 CFR periodic reports and results. Owners or
Burden Statement: The annual public part 63, subpart GGGG), Docket ID operators are also required to maintain
reporting and recordkeeping burden for Number: EPA–HQ–OECA–2010–0377, records of the occurrence and duration
this collection of information is EPA ICR Number 1947.05, OMB Control of any startup, shutdown, or
estimated to average 83 hours per Number 2060–0471, expiration July 31, malfunction in the operation of an
response. 2011. affected facility, or any period during
Respondents/Affected Entities: Affected Entities: Entities potentially which the monitoring system is
Owners or operators of polymeric affected by this action are the owners or inoperative. Reports, at a minimum, are
coating of supporting substrates operators of vegetable oil production required semiannually.
facilities. facilities. Burden Statement: The annual public
Estimated Number of Respondents: Abstract: The affected entities are reporting and recordkeeping burden for
53. subject to the General Provisions of the this collection of information is
Frequency of Response: Initially, NESHAP at 40 CFR part 63, subpart A, estimated to average 10 hours per
quarterly and semiannually. and any changes, or additions to the response.
Estimated Total Annual Hour Burden: General Provisions specified at 40 CFR Respondents/Affected Entities:
12,623. part 63, subpart GGGG. Owners or operators of electric arc
Estimated Total Annual Cost: Owners or operators of the affected furnace steelmaking facilities.
$1,410,367, which includes $805,367 in facilities must submit a one-time-only Estimated Number of Respondents:
labor costs, $48,500 capital/startup costs report of any physical or operational 91.
and $556,500 in operating and changes, initial performance tests, and Frequency of Response: Initially,
maintenance costs. periodic reports and results. Owners or semiannually and on-occasion.
Estimated Total Annual Hour Burden: cancellation order granting the TABLE 1.—METHIDATHION PRODUCT
2,293. requested cancellations. Any CANCELLATIONS
Estimated Total Annual Cost: distribution, sale, or use of the products
$121,573, which includes $121,573 in subject to this cancellation order is Registration Product Chemical
labor costs, no capital/startup costs and permitted only in accordance with the Number Name Name
no operating and maintenance costs. terms of this order, including any
EPA will consider any comments existing stock provisions. 100-530 Methidathion Methidathion
received and may amend any of the Technical
DATES: The cancellations are effective
above ICRs, as appropriate. Then the December 30, 2012. 10163-236 Supracide Methidathion
final ICR packages will be submitted to 2E Insecti-
OMB for review and approval pursuant FOR FURTHER INFORMATION CONTACT: Jose cide
to 5 CFR 1320.12. At that time, EPA will Gayoso, Pesticide Re-evaluation
issue one or more Federal Register Division (7508P), Office of Pesticide 10163-244 Supracide Methidathion
notices pursuant to 5 CFR Programs, Environmental Protection 25-W
1320.5(a)(1)(iv) to announce the Agency, 1200 Pennsylvania Ave., NW.,
submission of the ICR(s) to OMB and Washington, DC 20460–0001; telephone 10163-245 Methidathion Methidathion
number: (703) 347–8652; fax number: Technical
the opportunity to submit additional
comments to OMB. If you have any (703) 308–8005; e-mail address: 10163-AZ- Supracide Methidathion
questions about any of the above ICRs gayoso.jose@epa.gov. 00-0005 2E Insecti-
or the approval process, please contact SUPPLEMENTARY INFORMATION:
cide
the person listed under FOR FURTHER
INFORMATION CONTACT. I. General Information 10163-CA- Supracide Methidathion
01-0002 2E Insecti-
Dated: May 20, 2010. A. Does this Action Apply to Me? cide
Lisa C. Lund,
This action is directed to the public 10163-CA- Supracide Methidathion
Director, Office of Compliance.
in general and may be of interest to a 01-0009 25-W
[FR Doc. 2010–13173 Filed 6–1–10; 8:45 am]
wide range of stakeholders including
environmental, human health, 10163-CA- Supracide Methidathion
agricultural advocates, the chemical 01-0011 25-W
industry, pesticide users, and members
ENVIRONMENTAL PROTECTION 10163-CA- Supracide Methidathion
of the public interested in the sale,
AGENCY 02-0002 2E Insecti-
distribution, or use of pesticides. Since
cide
[EPA–HQ–OPP–2008–0723; FRL–8828–4] others may also be interested, the
Agency has not attempted to describe all 10163-CA- Supracide Methidathion
Methidathion; Cancellation Order for the specific entities that may be affected 04-0023 2E Insecti-
Pesticide Registrations by this action. If you have any questions cide
AGENCY: Environmental Protection regarding the applicability of this action
to a particular entity, consult the person 10163-CO- Supracide Methidathion
Agency (EPA). 01-0003 2E Insecti-
listed under FOR FURTHER INFORMATION
ACTION: Notice. cide
CONTACT.
SUMMARY: This notice announces EPA’s B. How Can I Get Copies of this 10163-FL- Supracide Methidathion
order for the cancellations, voluntarily Document and Other Related 99-0013 25-W
requested by the registrants and Information?
accepted by the Agency, of products 10163-ID-00- Supracide Methidathion
containing methidathion, pursuant to EPA has established a docket for this 0005 2E Insecti-
section 6(f)(1) of the Federal Insecticide, action under docket identification (ID) cide
Fungicide, and Rodenticide Act number EPA–HQ–OPP–2008–0723.
10163-ID-04- Supracide Methidathion
(FIFRA), as amended. This cancellation Publicly available docket materials are 0007 2E Insecti-
order follows a April 7, 2010, Federal available either in the electronic docket cide
Register notice of receipt of requests at http://www.regulations.gov, or, if only
from the registrants listed in Unit II., available in hard copy, at the Office of 10163-KS- Supracide Methidathion
Table 2, of this notice, to voluntarily Pesticide Programs (OPP) Regulatory 05-0006 2E Insecti-
cancel these product registrations. Public Docket in Rm. S–4400, One cide
These are the last products containing Potomac Yard (South Bldg.), 2777 S.
10163-MT- Supracide Methidathion
this pesticide registered for use in the Crystal Dr., Arlington, VA. The hours of
00-0008 2E Insecti-
United States. In the April 7, 2010 operation for this Docket Facility are cide
notice, EPA indicated that it would from 8:30 a.m. to 4 p.m., Monday
issue an order implementing the through Friday, excluding legal 10163-NV- Supracide Methidathion
cancellations, unless the Agency holidays. The Docket Facility telephone 00-0001 2E Insecti-
received substantive comments within number is (703) 305–5805. cide
the 30 day comment period that would II. What Action is the Agency Taking?
10163-NV- Supracide Methidathion

merit its further review of these
01-0001 2E Insecti-
requests, or unless the registrants This notice announces the cide
withdrew their requests. The Agency cancellations, as requested by
did not receive any comments on the registrants, of products registered under 10163-OK- Supracide Methidathion
notice. Further, the registrants did not section 3 of FIFRA. These registrations 05-0003 2E Insecti-
withdraw their requests. Accordingly, are listed in sequence by registration cide
EPA hereby issues in this notice, a number in Table 1 of this unit.
TABLE 1.—METHIDATHION PRODUCT orders that the product registrations Dated: May 21, 2010.
CANCELLATIONS—Continued identified in Unit II., Table 1 are Richard P. Keigwin, Jr.,
canceled. The effective date of the Director, Pesticide Re-evaluation Division,
Registration Product Chemical cancellations that are the subject of this Office of Pesticide Programs.
Number Name Name notice is December 30, 2012. Any [FR Doc. 2010–12925 Filed 6–1–10; 8:45 am]
10163-OR- Supracide Methidathion
distribution, sale, or use of existing BILLING CODE 6560–50–S
00-0010 2E Insecti- stocks of the products identified in Unit
cide II., Table 1, in a manner inconsistent
with any of the provisions for ENVIRONMENTAL PROTECTION
10163-OR- Supracide Methidathion disposition of existing stocks set forth in AGENCY
02-0018 2E Insecti- Unit VI. of this notice will be a violation
cide [FRL–9157–3; Docket ID No. EPA–HQ–ORD–
of FIFRA. 2010–0396]
10163-TX- Supracide Methidathion V. What is the Agency’s Authority for
05-0003 2E Insecti- Draft Toxicological Review of
cide
Taking this Action? Formaldehyde in Support of Summary
Information on the Integrated Risk
10163-UT- Supracide Methidathion
Section 6(f)(1) of FIFRA provides that
Information System (IRIS)
00-0006 2E Insecti- a registrant of a pesticide product may,
cide at any time, request that any of its AGENCY: Environmental Protection
pesticide registrations be canceled or Agency (EPA).
10163-WA- Supracide Methidathion amended to terminate one or more uses. ACTION: Notice of public comment
00-0006 2E Insecti- FIFRA further provides that, before period and listening session.
cide
acting on the request, EPA must publish
SUMMARY: EPA is announcing a 90-day
10163-WY- Supracide Methidathion a notice of receipt of the request in the
public comment period and a public
05-0001 2E Insecti- Federal Register. Thereafter, following listening session for the external review
cide the public comment period, the EPA draft human health assessment titled,
Administrator may approve such a ‘‘Toxicological Review of Formaldehyde
Table 2 of this unit includes the request. The notice of receipt for this Inhalation Assessment: In Support of
names and addresses of record for all action was published for comment on Summary Information on the Integrated
registrants of the products in Table 1 of April 7, 2010. The comment period Risk Information System (IRIS)’’ (EPA/
this unit in sequence by EPA company closed on May 7, 2010. 635/R–10/002C). The draft assessment
number. This number corresponds to
was prepared by the National Center for
the first part of the EPA registration VI. Provisions for Disposition of
Environmental Assessment (NCEA)
numbers of the products listed in Table Existing Stocks
within the EPA Office of Research and
1 of this unit. Development (ORD). EPA is releasing
Existing stocks are those stocks of
registered pesticide products which are this draft assessment solely for the
TABLE 2.—REGISTRANTS OF purpose of pre-dissemination peer
CANCELLED PRODUCTS currently in the United States and were
packaged, labeled, and released for review under applicable information
quality guidelines. This draft
EPA Company Company Name and Ad- shipment prior to the effective date of
Number dress assessment has not been formally
the action. The existing stock provisions
disseminated by EPA. It does not
for the products subject to this order are represent and should not be construed
000100 Syngenta Crop Protec-
as follows: to represent any Agency policy or
tion, Inc., P. O. Box
18300, Greensboro, NC After December 31, 2012, registrants determination. A committee of the
27419–8300 are prohibited from selling or National Research Council, acting under
distributing existing stocks of products the auspices of National Academy of
010163 Gowan Company, P. O. Sciences (NAS), will conduct an
Box 5569, Yuma, AZ
containing methidathion labeled for all
85366–5569 uses. independent scientific peer review of
the EPA draft human health assessment
After December 31, 2014, persons
of formaldehyde. The peer review
III. Summary of Public Comments other than registrants are prohibited
committee will hold meetings, some of
Received and Agency Response to from selling or distributing existing which may involve public sessions.
Comments stocks of products containing Public sessions will be announced
During the public comment period methidathion labeled for all uses. before each meeting on the National
provided, EPA received no comments in After December 31, 2014, existing Academies Web site (http://
response to the April 7, 2010 Federal stocks of products containing www8.nationalacademies.org/cp/
Register notice (75 FR 17735; FRL– methidathion labeled for all uses, projectview.aspx?key=49207). The
8819–1) announcing the Agency’s already in the hands of users can be public comment period and NAS
receipt of the requests for voluntary used legally until they are exhausted, scientific peer review are separate
cancellations of products listed in Unit provided that the use complies with the processes that provide opportunities for
II., Table 1. EPA approved label and labeling of the all interested parties to comment on the
affected product. assessment. Due to the timing of the

IV. Cancellation Order
NAS peer review meetings, one or more
Pursuant to FIFRA section 6(f), EPA List of Subjects NAS meetings may take place before the
hereby approves the requested close of EPA’s public comment period
cancellations of methidathion Environmental protection, Pesticides (see DATES below). For NAS meetings
registrations identified in Unit II., Table and pests. that occur during the public comment
1. Accordingly, the Agency hereby period, EPA will provide all public
comments to the NAS at least 5 working 20, the listening session will be persons with disabilities. For
days before the meeting date announced cancelled, and EPA will notify those information on access or services for
on the National Academies website. All registered of the cancellation. individuals with disabilities, please
comments provided to the EPA during ADDRESSES: The draft ‘‘Toxicological contact Christine Ross by phone at 703–
the public comment period will inform Review of Formaldehyde Inhalation 347–8592 or by e-mail at
the Agency’s revision of the draft Assessment: In Support of Summary IRISListeningSession@epa.gov. To
assessment. Information on the Integrated Risk request accommodation for a disability,
An EPA listening session will be held Information System (IRIS)’’ is available please contact Ms. Ross, preferably at
on July 27, during the public comment primarily via the Internet on the NCEA least 10 days prior to the meeting, to
period for this draft assessment. The home page under the Recent Additions give EPA as much time as possible to
purpose of the listening session is to and Publications menus at http:// process your request.
allow all interested parties to present www.epa.gov/ncea. A limited number of Additional Information: For
scientific and technical comments on paper copies are available from the information on the docket,
draft IRIS health assessments to EPA Information Management Team www.regulations.gov, or the public
and other interested parties attending (Address: Information Management comment period, please contact the
the listening session. EPA welcomes the Team, National Center for Office of Environmental Information
comments that will be provided to the Environmental Assessment (Mail Code: (OEI) Docket (Mail Code: 2822T), U.S.
Agency by the listening session 8601P), U.S. Environmental Protection Environmental Protection Agency, 1200
participants. The comments will be Pennsylvania Ave., NW., Washington,
Agency, 1200 Pennsylvania Avenue,
considered by the Agency as it revises DC 20460; telephone: 202–566–1752;
NW., Washington, DC 20460; telephone:
the draft assessment after the NAS facsimile: 202–566–1753; or e-mail:
703–347–8561; facsimile: 703–347–
external peer review. If listening session ORD.Docket@epa.gov.
8691). If you request a paper copy, For information on the Formaldehyde
participants wish EPA to share their please provide your name, mailing
comments with the peer review Listening Session, please contact
address, and the draft assessment title. Christine Ross, IRIS Staff, National
committee before their meeting, they Comments may be submitted
should also submit written comments at Center for Environmental Assessment
electronically via http:// (Mail Code: 8601P), U.S. Environmental
least 5 working days before the meeting www.regulations.gov, by e-mail, by mail,
date announced on the National Protection Agency, 1200 Pennsylvania
by facsimile, or by hand delivery/ Avenue, NW., Washington, DC 20460;
Academies website, using the detailed courier. Please follow the detailed
and established procedures described in telephone: 703–347–8592; facsimile:
instructions provided in the 703–347–8689; or e-mail:
the SUPPLEMENTARY INFORMATION section SUPPLEMENTARY INFORMATION section of IRISListeningSession@epa.gov.
of this notice. this notice. For information on the draft
DATES: The public comment period The listening session on the draft assessment, please contact John Whalan,
begins June 2, 2010, and ends August assessment for formaldehyde will be National Center for Environmental
31, 2010. Comments should be in held at the EPA offices at Potomac Yard Assessment (Mail Code: 8601P), U.S.
writing and must be received by EPA by North Building, N–4830, 2733 South Environmental Protection Agency, 1200
August 31, 2010. Crystal Drive, Arlington, Virginia 22202. Pennsylvania Avenue, NW.,
The listening session on the draft Please note that to gain entrance to this Washington, DC 20460; telephone: 703-
assessment for formaldehyde will be EPA building to attend the 347–8639; facsimile: 703–347–8689; or
held on July 27, beginning at 9 a.m. and Formaldehyde Listening Session, you e-mail: FRN_Questions@epa.gov.
ending at 4 p.m., Eastern Daylight Time. must have photo identification and SUPPLEMENTARY INFORMATION:
Interested parties who wish to attend must register at the guard’s desk in the
the listening session should register no lobby. The guard will retain your photo I. Information About IRIS
later than July 20. If you wish to present identification and will provide you with EPA’s IRIS is a human health
at the listening session, indicate in your a visitor’s badge. At the guard’s desk, assessment program that evaluates
registration that you would like to you should provide the name Christine quantitative and qualitative risk
present oral comments and provide the Ross and the telephone number 703– information on effects that may result
length of your presentation. To register 347–8592 to the guard on duty. The from exposure to chemical substances
send an e-mail to guard will contact Ms. Ross who will found in the environment. Through the
IRISListeningSession@epa.gov (subject meet you in the reception area to escort IRIS Program, EPA provides the highest
line: Formaldehyde Listening Session); you to the meeting room. When you quality science-based human health
call Christine Ross at 703–347–8592; or leave the building, please return your assessments to support the Agency’s
fax a registration request to 703–347– visitor’s badge to the guard and you will regulatory activities. The IRIS database
8689. Please reference the receive your photo identification. contains information for more than 540
‘‘Formaldehyde Listening Session’’ and A teleconference line will also be chemical substances that can be used to
include your name, title, affiliation, full available for registered attendees/ support the first two steps (hazard
address and contact information. speakers. The teleconference number is identification and dose-response
Indicate if you will need audio-visual 866–299–3188, and the access code is evaluation) of the risk assessment
equipment (e.g., laptop computer and 926–378–7897, followed by the pound process. When supported by available
slide projector). In general, each sign (#). The teleconference line will be data, IRIS provides oral reference doses
presentation should be no more than 30 activated at 8:45 a.m., and you will be (RfDs) and inhalation reference
minutes. If, however, there are more asked to identify yourself and your concentrations (RfCs) for chronic
requests for presentations than the affiliation at the beginning of the call. noncancer health effects and cancer
allotted time allows, then the time limit Information on Services for assessments. Combined with specific
for each presentation will be adjusted. A Individuals with Disabilities: EPA exposure information, government and
copy of the agenda for the listening welcomes public attendance at the private entities use IRIS to help
session will be available at the meeting. Formaldehyde Listening Session and characterize public health risks of
If no speakers have registered by July will make every effort to accommodate chemical substances in a site-specific
situation and thereby support risk www.regulations.gov or e-mail. The Trichloroethylene (TCE) Review Panel
management decisions designed to http://www.regulations.gov website is to conduct a follow-up discussion of its
protect public health. an ‘‘anonymous access’’ system, which review of EPA’s Toxicological Review of
means that EPA will not know your Trichloroethylene in Support of
II. How to Submit Comments to the
identity or contact information unless Summary Information on the Integrated
Docket at http://www.regulations.gov
you provide it in the body of your Risk Information System (IRIS), External
Submit your comments, identified by comments. If you send e-mail comments Review Draft.
Docket ID No. EPA–HQ–ORD–2010– directly to EPA without going through DATES: There will be a public
0396, by one of the following methods: http://www.regulations.gov, your e-mail
• http://www.regulations.gov: Follow teleconference on June 24, 2010 from
address will be automatically captured 12:30 to 4:30 p.m. (Eastern Daylight
the on-line instructions for submitting and included as part of the comments
comments. Time) and another public teleconference
that are placed in the public docket and on August 5, 2010 from 9 to 11:30 a.m.
• E-mail: ORD.Docket@epa.gov. made available on the Internet. If you
• Facsimile: 202–566–1753. (Eastern Daylight Time).
• Mail: Office of Environmental submit electronic comments, EPA
ADDRESSES: The teleconferences will be
Information (OEI) Docket (Mail Code: recommends that you include your
name and other contact information in conducted by phone only.
2822T), U.S. Environmental Protection
the body of your comments and with FOR FURTHER INFORMATION CONTACT: Any
Agency, 1200 Pennsylvania Ave., NW.,
any disk or CD–ROM you submit. If EPA member of the public wishing to obtain
Washington, DC 20460. The telephone
cannot read your comments due to information concerning the public
number is 202–566–1752. If you provide
technical difficulties and cannot contact teleconferences may contact Dr. Holly
comments by mail, please submit one
you for clarification, EPA may not be Stallworth, Designated Federal Officer
unbound original with pages numbered
able to consider your comments. (DFO), EPA Science Advisory Board
consecutively, and three copies of the
Electronic files should avoid the use of Staff Office (1400F), U.S. Environmental
comments. For attachments, provide an
special characters and any form of Protection Agency, 1200 Pennsylvania
index, number pages consecutively with
encryption and be free of any defects or Avenue, NW., Washington, DC 20460;
the comments, and submit an unbound
viruses. For additional information by telephone/voice mail at (202) 343–
original and three copies.
• Hand Delivery: The OEI Docket is about EPA’s public docket, visit the EPA 9867 or via e-mail at
located in the EPA Headquarters Docket Docket Center homepage at http:// stallworth.holly@epa.gov. General
Center, EPA West Building, Room 3334, www.epa.gov/epahome/dockets.htm. information about the SAB, as well as
1301 Constitution Ave., NW., Docket: All documents in the docket any updates concerning the meeting
Washington, DC. The EPA Docket are listed in the http:// announced in this notice, may be found
Center Public Reading Room is open www.regulations.gov index. Although on the SAB Web site at http://
from 8:30 a.m. to 4:30 p.m., Monday listed in the index, some information is www.epa.gov/sab.
through Friday, excluding legal not publicly available, e.g., CBI or other SUPPLEMENTARY INFORMATION: Pursuant
holidays. The telephone number for the information whose disclosure is to the Federal Advisory Committee Act
Public Reading Room is 202–566–1744. restricted by statute. Certain other (FACA), 5 U.S.C., App. 2, notice is
Deliveries are only accepted during the material, such as copyrighted material, hereby given that the SAB
Public Reading Room’s normal hours of will be publicly available only in hard Trichloroethylene (TCE) Review Panel
operation, and special arrangements copy. Publicly available docket will hold two public teleconferences to
should be made for deliveries of boxed materials are available either discuss its peer review report to EPA.
information. If you provide comments electronically at http:// The SAB was established pursuant to 42
by hand delivery, please submit one www.regulations.gov or in hard copy at U.S.C. 4365 to provide independent
unbound original with pages numbered the OEI Docket in the EPA Headquarters scientific and technical advice to the
consecutively, and three copies of the Docket Center. Administrator on the technical basis for
comments. For attachments, provide an Dated: May 25, 2010. Agency positions and regulations. The
index, number pages consecutively with Rebecca Clark, SAB is a Federal Advisory Committee
the comments, and submit an unbound Acting Director, National Center for chartered under FACA. The SAB will
original and three copies. Environmental Assessment. comply with the provisions of FACA
Instructions: Direct your comments to [FR Doc. 2010–13097 Filed 6–1–10; 8:45 am]
and all appropriate SAB Staff Office
Docket ID No. EPA–HQ–ORD–2010– procedural policies.
0396. Please ensure that your comments The TCE Review Panel met on May
are submitted within the specified 10–12, 2010, to review EPA’s
comment period. Comments received ENVIRONMENTAL PROTECTION Toxicological Review of
after the closing date will be marked AGENCY Trichloroethylene in Support of
‘‘late,’’ and may only be considered if Summary Information on the Integrated
time permits. It is EPA’s policy to [FRL–9157–8] Risk Information System (IRIS), External
include all comments it receives in the Review Draft [Federal Register Notice
Science Advisory Board Staff Office;
public docket without change and to dated March 31, 2010 (75 FR 16108–
Notification of Two Public
make the comments available online at 16109)]. Materials from the May meeting
Teleconferences of the SAB
http://www.regulations.gov, including are posted on the SAB Web site at
Trichloroethylene (TCE) Review Panel
any personal information provided, http://yosemite.epa.gov/sab/
unless comments include information AGENCY: Environmental Protection sabproduct.nsf/MeetingCalBOARD/

claimed to be Confidential Business Agency (EPA). BEEA3E70E29DE3A8852
Information (CBI) or other information ACTION: Notice. 576E3006B8F54?OpenDocument. The
whose disclosure is restricted by statute. purpose of the June 24, 2010
Do not submit information that you SUMMARY: The EPA Science Advisory teleconference is to further discuss the
consider to be CBI or otherwise Board (SAB) Staff Office announces two Panel’s review of EPA’s draft document.
protected through http:// public teleconferences of the SAB The purpose of the August 5, 2010
teleconference is to discuss the Panel’s Accessibility: For information on Regional Administrator is making this
draft report. access or services for individuals with determination based on the review and
Availability of Meeting Materials: disabilities, please contact Dr. Holly recommendations of the EPA Region III,
Agendas and materials in support of Stallworth at (202) 343–9867 or Water Protection Division, Office of
these meetings will be placed on the stallworth.holly@epa.gov. To request Infrastructure and Assistance. The
SAB Web site at http://www.epa.gov/sab accommodation of a disability, please CVPSD has provided sufficient
in advance of each meeting. For contact Dr. Stallworth preferably at least documentation to support its request.
technical questions and information ten days prior to each teleconference to The Assistant Administrator of the
concerning EPA’s draft document, give EPA as much time as possible to EPA’s Office of Administration and
please contact Dr. Weihsueh Chiu at process your request. Resources Management has concurred
(703) 347–8607, or Dated: May 25, 2010.
on this decision to make an exception
chiu.weihsueh@epa.gov. to Section 1605 of ARRA. This action
Anthony F. Maciorowski,
Procedures for Providing Public Input: permits the purchase of membrane
Deputy Director, EPA Science Advisory Board filtration cassettes for the proposed
Public comment for consideration by Staff Office.
EPA’s Federal advisory committees and project being implemented by the
[FR Doc. 2010–13202 Filed 6–1–10; 8:45 am] CVPSD.
panels has a different purpose from BILLING CODE 6560–50–P
public comment provided to EPA DATES: Effective Date: May 17, 2010.
program offices. Therefore, the process FOR FURTHER INFORMATION CONTACT:
for submitting comments to a Federal ENVIRONMENTAL PROTECTION Robert Chominski, Deputy Associate
advisory committee is different from the AGENCY Director, (215) 814–2162, or David
process used to submit comments to an McAdams, Environmental Engineer,
EPA program office. Federal advisory [FRL–9157–6] (215) 814–5764, Office of Infrastructure
committees and panels, including & Assistance (OIA), Water Protection
Notice of a Project Waiver of Section
scientific advisory committees, provide Division, U.S. EPA Region III, 1650
1605 (Buy American Requirement) of
independent advice to EPA. Members of Arch Street, Philadelphia, PA 19103–
the American Recovery and
the public can submit comments for a 2029.
Reinvestment Act of 2009 (ARRA) to
Federal advisory committee to consider SUPPLEMENTARY INFORMATION: In
the Canaan Valley Public Service
as it develops advice for EPA. They accordance with ARRA Sections 1605(c)
District, West Virginia
should send their comments directly to and 1605(b)(2), EPA hereby provides
the Designated Federal Officer for the AGENCY: Environmental Protection notice that it is granting a project waiver
relevant advisory committee. Oral Agency (EPA). of the requirements of Section 1605(a) of
Statements: In general, individuals or ACTION: Notice. Public Law 111–5, Buy American
groups requesting an oral presentation requirements to the Canaan Valley
at a public teleconference will be SUMMARY: The Regional Administrator Public Service District (CVPSD) for the
limited to three minutes per speaker, of EPA Region 3 is hereby granting a acquisition of an ‘‘Enviroquip MBR
with no more than a total of 30 minutes project waiver of the Buy American system.’’ CVPSD has been unable to find
for all speakers. Each person making an requirements of ARRA Section 1605 an MBR system that contains American-
oral statement should consider under the authority of Section made MBR cassettes to meet its specific
providing written comments as well as 1605(b)(2) [manufactured goods are not wastewater requirements.
their oral statement so that the points produced in the United States in Section 1605 of the ARRA requires
presented orally can be expanded upon sufficient and reasonably available that none of the appropriated funds may
in writing. Interested parties should quantities and of a satisfactory quality] be used for the construction, alteration,
contact Dr. Holly Stallworth, DFO, in to the Canaan Valley Public Service maintenance, or repair of a public
writing (preferably via e-mail) at the District (CVPSD) for the purchase of a building or public work unless all of the
contact information noted above, by membrane bioreactor system (MBR), iron, steel, and manufactured goods
June 21, 2010 for the June 24, 2010 supplied by Enviroquip Inc., that used in the project are produced in the
teleconference and by August 2, 2010 contains a primary component not United States unless a waiver is
for the August 5, 2010 teleconference, to manufactured in America, at two of its provided to the recipient by EPA. A
be placed on the list of public speakers. Wastewater Treatment Plants (WWTPs). waiver may be provided if EPA
Written Statements: Written statements CVPSD indicates that the MBR determines that (1) applying these
should be supplied to the DFO via e- treatment process is necessary to requirements would be inconsistent
mail at the contact information noted achieve the wastewater treatment levels with public interest; (2) iron, steel, and
above. Materials received fewer than required by the National Pollutant the relevant manufactured goods are not
two days before each teleconference Discharge Elimination System (NPDES) produced in the United States in
may not be delivered to panel members permits issued for these WWTPs. The sufficient and reasonably available
in time for them to consider the membrane filtration equipment under quantities and of a satisfactory quality;
materials during the teleconference. consideration is manufactured by a or (3) inclusion of iron, steel, and the
Written statements should be supplied company located in Japan and no relevant manufactured goods produced
in one of the following electronic United States manufacturer produces an in the United States will increase the
formats: Adobe Acrobat PDF, MS Word, alternative that meets the CVPSD’s cost of the overall project by more than
MS PowerPoint, or Rich Text files in technical specifications. This is a 25 percent.
IBM–PC/Windows 98/2000/XP format. project specific waiver and only applies CVPSD’s waiver request is to allow
Submitters are requested to provide to the use of the specified product for the purchase of the Enviroquip MBR
versions of signed documents, the ARRA funded project being system with four membrane filtration
submitted with and without signatures, proposed. Any other ARRA project that cassettes, manufactured by Kubota Inc.
because the SAB Staff Office does not may wish to use the same product must of Japan, for use in improvements to two
publish documents with signatures on apply for a separate waiver based on the existing WWTPs in West Virginia. This
its Web sites. specific project circumstances. The project will upgrade two of its existing
WWTPs by adding a new MBR American requirements on such projects authority to issue exceptions to Section
treatment process. The membrane otherwise eligible for State Revolving 1605 of ARRA within the geographic
filtration cassette is an integral Fund assistance would result in boundaries of their respective regions
component of the MBR treatment unreasonable delay and thus displace and with respect to requests by
process because it separates the treated the ‘‘shovel ready’’ status for this project. individual grant recipients. Having
wastewater from the mixed liquor To further delay construction is in established both a proper basis to
which comes from the biological direct conflict with a fundamental specify the particular good required for
reactors, before the treated wastewater is economic purpose of the ARRA, which this project, and that this manufactured
disinfected and discharged. After an is to create or retain jobs. good was not available from a producer
engineering analysis of alternate Based on additional research in the United States, the Canaan Valley
treatment processes, the CVPSD conducted by EPA’s Office of Public Service District is hereby granted
determined MBR to be the most Infrastructure and Assistance (OIA) in a waiver from the Buy American
environmentally sound and cost Region 3, and to the best of the Region’s requirements of Section 1605(a) of
effective solution. The MBR is an knowledge at the time of review, there Public Law 111–5 for the purchase of
advanced waste water treatment process do not appear to be other membrane four membrane filtration cassettes using
which is designed to meet the high filtration cassettes manufactured ARRA funds as specified in the
quality effluent requirements of the domestically that would meet the CVPSD’s request of December 16, 2009.
waste load allocation under the NPDES CVPSD’s technical specification. EPA’s This supplementary information
permit. In addition, in anticipation of national contractor prepared a technical constitutes the detailed written
procuring the MBR system, the CVPSD assessment report dated January 9, 2010 justification required by Section 1605(c)
has already incorporated specific based on the waiver request submitted. for waivers ‘‘based on a finding under
technical design requirements for This report included a detailed review subsection (b).’’
installation of membrane filter cassettes intended to enable EPA to determine if
Authority: Public Law 111–5, section
with the MBR treatment process at their any company could be considered to
1605.
WWTPs, including specific tankage substantially transform these cassettes
footprint, geometry and configuration. in the United States. However, sufficient Dated: May 17, 2010.
To require CVPSD to redesign its project information was not available or made W. C. Early,
would cause an unacceptable delay to available to establish either performance Acting Regional Administrator, Region III.
the initiation of construction. characteristics for any potential [FR Doc. 2010–13225 Filed 6–1–10; 8:45 am]
The CVPSD has provided information alternative product, or the substantial BILLING CODE 6560–50–P
to the EPA demonstrating that there are transformation of any such product in
no membrane filtration cassettes the United States. Accordingly, the
manufactured in the United States in report determined that the waiver ENVIRONMENTAL PROTECTION
sufficient and reasonable quantity and request submittal was complete, that AGENCY
of a satisfactory quality to meet the adequate technical information was
[EPA–HQ–OPP–2010–0325; FRL–8824–2]
required technical specification. Four provided, and that there were no
companies were considered for the significant weaknesses in the Antimicrobial Pesticide Products;
membrane filtration cassettes, none justification provided. The report Registration Applications
based in the United States. The CVPSD confirmed the waiver applicant’s claim
has performed market research but was that there are no American-made AGENCY: Environmental Protection
unsuccessful in its effort to locate any membrane filtration cassettes for use in Agency (EPA).
domestic manufacturers of membrane MBRs in WWTPs. ACTION: Notice.
filtration cassettes for WWTPs. The OIA has reviewed this waiver
The April 28, 2009 EPA HQ request and to the best of our knowledge SUMMARY: This notice announces receipt
Memorandum, Implementation of Buy at the time of review has determined of an application to register new
American provisions of Public Law that the supporting documentation antimicrobial pesticide products
111–5, the ‘‘American Recovery and provided by the CVPSD is sufficient to containing new active ingredients,
Reinvestment Act of 2009’’, defines meet the criteria listed under Section pursuant to the provisions of section
reasonably available quantity as ‘‘the 1605(b) and in the April 28, 2009, 3(c) of the Federal Insecticide,
quantity of iron, steel, or relevant ‘‘Implementation of Buy American Fungicide, and Rodenticide Act
manufactured good is available or will provisions of Public Law 111–5, the (FIFRA), as amended. EPA is publishing
be available at the time needed and ‘American Recovery and Reinvestment this Notice of such applications,
place needed, and in the proper form or Act of 2009’ Memorandum:’’ Iron, steel, pursuant to section 3(c)(4) of FIFRA.
specification as specified in the project and the manufactured goods are not DATES: Comments must be received on
plans and design.’’ The CVPSD has produced in the United States in or before July 2, 2010.
incorporated specific technical design sufficient and reasonably available ADDRESSES: Submit your comments,
requirements for installation of quantities and of a satisfactory quality. identified by docket identification (ID)
membrane filtration cassettes at its The basis for this project waiver is the number EPA–HQ– OPP–2010–0325, by
WWTPs. authorization provided in Section one of the following methods:
The purpose of the ARRA is to 1605(b)(2). Due to the lack of production • Federal eRulemaking Portal: http://
stimulate economic recovery in part by of this product in the United States in www.regulations.gov. Follow the on-line
funding current infrastructure sufficient and reasonably available instructions for submitting comments.
construction, not to delay projects that quantities and of a satisfactory quality • Mail: Office of Pesticide Programs
are ‘‘shovel ready’’ by requiring utilities, in order to meet the CVPSD’s technical (OPP) Regulatory Public Docket (7502P),
such as the CVPSD, to revise their specifications, a waiver from the Buy Environmental Protection Agency, 1200
standards and specifications, institute a American requirement is justified. Pennsylvania Ave., NW., Washington,
new bidding process, and potentially The March 31, 2009 Delegation of DC 20460–0001.
choose a more costly, less efficient Authority Memorandum provided • Delivery: OPP Regulatory Public
project. The imposition of ARRA Buy Regional Administrators with the Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One Facility are from 8:30 a.m. to 4 p.m., information (subject heading, Federal
Potomac Yard (South Bldg.), 2777 S. Monday through Friday, excluding legal Register date and page number).
Crystal Dr., Arlington, VA. Deliveries holidays. The Docket Facility telephone ii. Follow directions. The Agency may
are only accepted during the Docket number is (703) 305–5805. ask you to respond to specific questions
Facility’s normal hours of operation FOR FURTHER INFORMATION CONTACT: or organize comments by referencing a
(8:30 a.m. to 4 p.m., Monday through Demson Fuller, Antimicrobials Division Code of Federal Regulations (CFR) part
Friday, excluding legal holidays). (7510P), Office of Pesticide Programs,
Special arrangements should be made or section number.
Environmental Protection Agency, 1200
for deliveries of boxed information. The Pennsylvania Ave., NW., Washington, iii. Explain why you agree or disagree;
Docket Facility telephone number is DC 20460–0001; telephone number: suggest alternatives and substitute
(703) 305–5805. (703) 308–8062; e-mail address: language for your requested changes.
Instructions: Direct your comments to fuller.demson@epa.gov. iv. Describe any assumptions and
docket ID number EPA–HQ–OPP–2010–
provide any technical information and/
0325. EPA’s policy is that all comments
or data that you used.
received will be included in the docket I. General Information
without change and may be made v. If you estimate potential costs or
available on-line at http:// A. Does this Action Apply to Me? burdens, explain how you arrived at
www.regulations.gov, including any You may be potentially affected by your estimate in sufficient detail to
personal information provided, unless this action if you are an agricultural allow for it to be reproduced.
the comment includes information producer, food manufacturer, or vi. Provide specific examples to
claimed to be Confidential Business pesticide manufacturer. Potentially illustrate your concerns and suggest
Information (CBI) or other information affected entities may include, but are alternatives.
whose disclosure is restricted by statute. not limited to:
Do not submit information that you vii. Explain your views as clearly as
• Pesticide manufacturing (NAICS possible, avoiding the use of profanity
consider to be CBI or otherwise
code 32532). or personal threats.
protected through regulations.gov or e-
This listing is not intended to be
mail. The regulations.gov website is an viii. Make sure to submit your
exhaustive, but rather provides a guide
‘‘anonymous access’’ system, which comments by the comment period
means EPA will not know your identity for readers regarding entities likely to be
affected by this action. Other types of deadline identified.
or contact information unless you
provide it in the body of your comment. entities not listed in this unit could also II. Registration Applications
If you send an e-mail comment directly be affected. The North American
to EPA without going through Industrial Classification System EPA has received an application to
regulations.gov, your e-mail address (NAICS) codes have been provided to register a pesticide product containing
will be automatically captured and assist you and others in determining active ingredients not included in any
included as part of the comment that is whether this action might apply to previously registered pesticide
placed in the docket and made available certain entities. If you have any products. Pursuant to the provisions of
on the Internet. If you submit an questions regarding the applicability of section 3(c)(4) of FIFRA, EPA is hereby
electronic comment, EPA recommends this action to a particular entity, consult providing notice of receipt and
that you include your name and other the person listed under FOR FURTHER opportunity to comment on this
contact information in the body of your INFORMATION CONTACT.
application. Notice of receipt of this
comment and with any disk or CD-ROM B. What Should I Consider as I Prepare application does not imply a decision
you submit. If EPA cannot read your My Comments for EPA? by the Agency on this application.
comment due to technical difficulties
1. Submitting CBI. Do not submit this Registration Number/File Symbol:
and cannot contact you for clarification,
information to EPA through 85249–R. Docket Number: EPA–HQ–
EPA may not be able to consider your
comment. Electronic files should avoid regulations.gov or e-mail. Clearly mark OPP–2010–0325. Company name and
the use of special characters, any form the part or all of the information that address: NanoSilva, LLC, 2811 NE 14th
of encryption, and be free of any defects you claim to be CBI. For CBI Street, Ocala, FL 34470. Active
or viruses. information in a disk or CD-ROM that ingredient: Nanosilver. Proposed Use(s):
Docket: All documents in the docket you mail to EPA, mark the outside of the Antimicrobial and preservative additive
are listed in the docket index available disk or CD-ROM as CBI and then used to treat fibers, plastics, polymers,
at http://www.regulations.gov. Although identify electronically within the disk or latex products and ceramics. Contact:
listed in the index, some information is CD-ROM the specific information that is Demson Fuller, (703) 308–8062;
not publicly available, e.g., CBI or other claimed as CBI. In addition to one fuller.demson@epa.gov.
information whose disclosure is complete version of the comment that
restricted by statute. Certain other includes information claimed as CBI, a List of Subjects
material, such as copyrighted material, copy of the comment that does not
Environmental protection,
is not placed on the Internet and will be contain the information claimed as CBI
must be submitted for inclusion in the Antimicrobial pesticides and pest.
publicly available only in hard copy
form. Publicly available docket public docket. Information so marked Dated: May 21, 2010.
materials are available either in the will not be disclosed except in
Joan Harrigan-Farrelly,
electronic docket at http:// accordance with procedures set forth in
www.regulations.gov, or, if only 40 CFR part 2. Director, Antimicrobials Division, Office of
2. Tips for preparing your comments. Pesticide Programs.
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S– When submitting comments, remember [FR Doc. 2010–13183 Filed 6–1–10; 8:45 am]
4400, One Potomac Yard (South Bldg.), to: BILLING CODE 6560–50–S
2777 S. Crystal Dr., Arlington, VA. The i. Identify the document by docket ID
hours of operation of this Docket number and other identifying
ENVIRONMENTAL PROTECTION considered in acting on the notices are includes whether the acquisition of the
AGENCY set forth in paragraph 7 of the Act (12 nonbanking company complies with the
U.S.C. 1817(j)(7)). standards in section 4 of the BHC Act
[Docket# EPA–RO4–SFUND–2010–0447, The notices are available for
FRL–9157–5]
(12 U.S.C. 1843). Unless otherwise
immediate inspection at the Federal noted, nonbanking activities will be
Cooksey Brothers Landfill Fire Reserve Bank indicated. The notices conducted throughout the United States.
Superfund Site; Ashland, Boyd also will be available for inspection at Additional information on all bank
County, KY; Notice of Settlement the office of the Board of Governors. holding companies may be obtained
Interested persons may express their from the National Information Center
AGENCY: Environmental Protection views in writing to the Reserve Bank website at www.ffiec.gov/nic/.
Agency. indicated for that notice or to the offices Unless otherwise noted, comments
ACTION: Notice of settlement. of the Board of Governors. Comments regarding each of these applications
must be received not later than June 16, must be received at the Reserve Bank
SUMMARY: Under Section 122(h)(1) of the 2010. indicated or the offices of the Board of
Comprehensive Environmental A. Federal Reserve Bank of San Governors not later than June 25, 2010.
Response, Compensation and Liability Francisco (Kenneth Binning, Vice A. Federal Reserve Bank of Dallas (E.
Act (CERCLA), the United States President, Applications and Ann Worthy, Vice President) 2200
Environmental Protection Agency has Enforcement) 101 Market Street, San North Pearl Street, Dallas, Texas 75201-
entered into a settlement for Francisco, California 94105–1579: 2272:
reimbursement of past response costs 1. Warburg Pincus Private Equity X, 1. Steele Holdings, Inc., Tyler, Texas,
concerning the Cooksey Brothers L.P.; Warburg Pincus X Partners, L.P.; to become a bank holding company by
Landfill Fire Superfund Site located in Warburg Pincus X, L.P.; Warburg Pincus acquiring 100 percent of the voting
Ashland, Boyd County, Kentucky for X, LLC; Warburg Pincus Partners, LLC; shares of American State Bank, Arp,
publication. and Warburg Pincus & Co., all of New Texas.
DATES: The Agency will consider public York, New York; to acquire voting
Board of Governors of the Federal Reserve
comments on the settlement until July 2, shares of Sterling Financial Corporation, System, May 28, 2010.
2010. The Agency will consider all and thereby indirectly acquire voting
Robert deV. Frierson,
comments received and may modify or shares of Sterling Savings Bank, both of
Spokane, Washington, and Golf Savings Deputy Secretary of the Board.
withdraw its consent to the settlement [FR Doc. 2010–13284 Filed 6–1–10; 8:45 am]
if comments received disclose facts or Bank, Mountlake Terrace, Washington.
BILLING CODE 6210–01–S
considerations which indicate that the Board of Governors of the Federal Reserve
settlement is inappropriate, improper, System, May 27, 2010.
or inadequate. Robert deV. Frierson,
Deputy Secretary of the Board. OFFICE OF GOVERNMENT ETHICS
ADDRESSES: Copies of the settlement are
available from Ms. Paula V. Painter. [FR Doc. 2010–13134 Filed 6–1–10; 8:45 am] Agency Information Collection
Submit your comments, identified by BILLING CODE 6210–01–S Activities; Submission for OMB
Docket ID No. EPA–RO4–SFUND–2010– Review; Proposed Collection;
0447 or Site name Cooksey Brothers Comment Request for an Unmodified
Landfill Superfund Site by one of the FEDERAL RESERVE SYSTEM SF 278 Executive Branch Personnel
following methods: Public Financial Disclosure Report
• http://www.regulations.gov: Follow Formations of, Acquisitions by, and
the on-line instructions for submitting Mergers of Bank Holding Companies AGENCY: Office of Government Ethics
comments. The companies listed in this notice (OGE).
• http://www.epa.gov/region4/waste/ have applied to the Board for approval, ACTION: Notice of request for agency and
sf/enforce.htm. pursuant to the Bank Holding Company public comments.
• E-mail. Painter.Paula@epa.gov. Act of 1956 (12 U.S.C. 1841 et seq.)
FOR FURTHER INFORMATION CONTACT: SUMMARY: After publication of this
(BHC Act), Regulation Y (12 CFR Part
Paula V. Painter at 404/562–8887. 225), and all other applicable statutes second round notice, OGE intends to
and regulations to become a bank submit an unmodified Standard Form
Dated: May 14, 2010. 278 Executive Branch Personnel Public
Anita L. Davis, holding company and/or to acquire the
assets or the ownership of, control of, or Financial Disclosure Report to the
Chief, Superfund Enforcement & Information Office of Management and Budget
Management Branch, Superfund Division. the power to vote shares of a bank or
bank holding company and all of the (OMB) for review and approval of a
[FR Doc. 2010–13224 Filed 6–1–10; 8:45 am] three-year extension under the
banks and nonbanking companies
owned by the bank holding company, Paperwork Reduction Act of 1995 (44
including the companies listed below. U.S.C. chapter 35).
The applications listed below, as well DATES: Written comments by the public
FEDERAL RESERVE SYSTEM as other related filings required by the and the agencies on this proposed
Board, are available for immediate extension are invited and must be
Change in Bank Control Notices; received by July 2, 2010.
Acquisition of Shares of Bank or Bank inspection at the Federal Reserve Bank
Holding Companies indicated. The applications also will be ADDRESSES: Comments may be
available for inspection at the offices of submitted, identified by the title of the
The notificants listed below have the Board of Governors. Interested information collection activity, to the
applied under the Change in Bank persons may express their views in Office of Information and Regulatory
Control Act (12 U.S.C. 1817(j)) and writing on the standards enumerated in Affairs, Attn: Ms. Sharon Mar, OMB
§ 225.41 of the Board’s Regulation Y (12 the BHC Act (12 U.S.C. 1842(c)). If the Desk Officer for the Office of
CFR 225.41) to acquire a bank or bank proposal also involves the acquisition of Government Ethics, by either of the
holding company. The factors that are a nonbanking company, the review also following methods within 30 days from
the date of publication in this Federal Request for Comments: OGE SUPPLEMENTARY INFORMATION: Pursuant
Register: published a first round notice of its to section 319M of the Public Health
FAX: 202–395–6974, Attn: Ms. Sharon intent to request paperwork clearance Service Act (42 U.S.C. 247d-7f) and
Mar, OMB Desk Officer for the Office of for the proposed unmodified SF 278 section 222 of the Public Health Service
Government Ethics; Executive Branch Personnel Public Act (42 U.S.C. 217a), the Department of
E-mail: smar@omb.eop.gov. Financial Disclosure Report on March Health and Human Services established
FOR FURTHER INFORMATION CONTACT: Mr. 19, 2010 (see 75 FR 13287). OGE the National Biodefense Science Board.
Paul Ledvina at the Office of received no responses to that notice. The Board shall provide expert advice
Government Ethics; telephone: 202– Agency and public comment is again and guidance to the Secretary on
482–9247; TTY: 800–877–8339; FAX: invited specifically on the need for and scientific, technical, and other matters
202–482–9237; E-mail: practical utility of this information of special interest to the Department of
paul.ledvina@oge.gov. An electronic collection, the accuracy of OGE’s Health and Human Services regarding
copy of the SF 278 is available in the burden estimate, the enhancement of current and future chemical, biological,
Forms Library section of OGE’s Web site quality, utility and clarity of the nuclear, and radiological agents,
at http://www.usoge.gov. A paper copy information collected, and the whether naturally occurring, accidental,
may also be obtained, without charge, minimization of burden (including the or deliberate. The Board may also
by contacting Mr. Ledvina. use of information technology). provide advice and guidance to the
SUPPLEMENTARY INFORMATION: Comments received in response to this Secretary on other matters related to
Title: Executive Branch Personnel notice will be summarized for, and may public health emergency preparedness
Public Financial Disclosure Report. be included with, the OGE request for and response.
Form Number: SF 278. extension of OMB paperwork approval. Discription of Duties: The Board shall
OMB Control Number: 3209–0001. The comments will also become a advise the Secretary on current and
Type of Information Collection: matter of public record. future trends, challenges, and
Extension without change of a currently opportunities presented by advances in
approved collection. Approved: May 26, 2010. biological and life sciences,
Type of Review Request: Regular. Robert I. Cusick, biotechnology, and genetic engineering
Respondents: Private citizen Director, Office of Government Ethics. with respect to threats posed by
Presidential nominees to executive [FR Doc. 2010–13187 Filed 6–1–10; 8:45 am] naturally occurring infectious diseases
branch positions subject to Senate BILLING CODE 6345–03–P and chemical, biological, radiological,
confirmation; other private citizens who and nuclear agents. At the request of the
are potential (incoming) Federal Secretary, the Board shall review and
employees whose positions are DEPARTMENT OF HEALTH AND consider any information and findings
designated for public financial HUMAN SERVICES received from the working groups
disclosure filing; those who file established under 42 U.S.C. 247d–7f(b).
termination financial disclosure reports National Biodefense Science Board; At the request of the Secretary, the
for such positions after their Call for Nominees Board shall provide recommendations
Government service ends; and and findings for expanded, intensified,
Presidential and Vice-Presidential AGENCY: Department of Health and and coordinated biodefense research
candidates. Human Services, Office of the Secretary. and development activities. Additional
Estimated Annual Number of ACTION: Notice. advisory duties concerning public
Respondents: 1,300. health emergency preparedness and
Estimated Time per Response: 3 SUMMARY: The Office of the Secretary is response may be assigned at the
hours. accepting resumes or curricula vitae discretion of the Secretary.
Estimated Total Annual Burden: from qualified individuals who wish to Structure: The Board shall consist of
3,900 hours. be considered for membership on the 13 voting members, including the
Abstract: The SF 278 collects National Biodefense Science Board. Six Chairperson; additionally, there may be
information from certain officers and members have membership expiration non-voting ex officio members.
high-level employees in the executive dates of December 31, 2010. Nominees Members and the Chairperson shall be
branch for conflicts of interest review are being accepted in the following appointed by the Secretary from among
and public disclosure. The form is also categories: industry; academia, health the Nation’s preeminent scientific,
completed by individuals who are care consumers, and from State and public health and medical experts, as
nominated by the President for high- local governments and public health follows: (a) Such Federal officials as the
level executive branch positions agencies, emergency responders and Secretary determines are necessary to
requiring Senate confirmation and new organizations representing other support the functions of the Board, (b)
entrants to other public reporting appropriate stakeholders. Submit a four individuals from the
positions in the executive branch. The resume or curriculum vitae to pharmaceutical, biotechnology and
financial information collected relates nbsb@hhs.gov by June 30, 2010. device industries, (c) four academicians,
to: assets and income; transactions; gifts, FOR FURTHER INFORMATION, and (d) five other members as
reimbursements and travel expenses; CONTACT: CAPT Leigh A. Sawyer, determined appropriate by the
liabilities; agreements or arrangements; D.V.M., M.P.H., Executive Director, Secretary, one of whom must be a
outside positions; and compensation National Biodefense Science Board, practicing health care professional and
over $5,000 paid by a source—all Office of the Assistant Secretary for one of whom must be from an
subject to various reporting thresholds Preparedness and Response, U.S. organization representing health care
and exclusions. The information is Department of Health and Human consumers. Additional members for
collected in accordance with section Services, 330 C Street, SW., Switzer category (d), above, will be selected
102 of the Ethics Act, 5 U.S.C. app. Building Room 5127, Washington, DC from among State and local
section 102, and OGE’s implementing 20447; 202–205–3815; fax: 202–205– governments and public health
financial disclosure regulations at 5 CFR 8508; e-mail address: agencies, emergency medical responders
part 2634. leigh.sawyer@hhs.gov. and organizations representing other
appropriate stakeholders. A member of milestones related to implementation of Training Utilization and Preservation—
the Board described in (b), (c), and (d) program plans; and (4) the impact stage Survey (TUP–S) for State/Tribal
in the above paragraph shall serve for a assesses the impact of the program on grantees and the Training Exit Survey
term of 3 years, except that the Secretary early identification, referral for services for Campus grantees (TES–C) are
may adjust the terms of the initial Board and service follow up of youth at risk. proposed as new instruments. The
appointees in order to provide for a Additionally, to obtain a addition of these two new data
staggered term of appointment of all comprehensive understanding of the collection activities, the inclusion of the
members. Members who are not fulltime integration of community-based Campus Case studies, and an overall
or permanent part-time Federal behavioral health services with services growth in number of grants for both the
employees shall be appointed by the provided by college or university State/Tribal and Campus programs has
Secretary as Special Government campuses, SAMHSA will conduct case increased the burden associated with
Employees. studies of four exemplary Campus the cross-site evaluation. A summary
suicide prevention programs. Currently, table of number of respondents and
case studies of two campus grantees are respondent burden has also been
Nicole Lurie,
underway. The goal of the Campus Case included.
Assistant Secretary for Preparedness and Studies is to understand how a public
Response, U.S. Department of Health and health approach is successfully applied Data Collection Activities for State/
Human Services.
as a model for campus suicide Tribal Grantees
[FR Doc. 2010–13177 Filed 6–1–10; 8:45 am] For State/Tribal grantees, the
prevention efforts, and will explore, in
BILLING CODE P a systematic manner: The suicide Prevention Strategies Inventory State/
prevention related infrastructures and Tribal (PSI ST), Training Exit Survey
supports (e.g., clinical and non-clinical) State/Tribal (TES ST), Referral Network
DEPARTMENT OF HEALTH AND that exist on selected GLS-funded Survey (RNS) and Training Utilization
HUMAN SERVICES campuses; the various student-level and Preservation—Interview (TUP–I)
factors that are related to suicide described below are revised versions of
Substance Abuse and Mental Health
prevention efforts (e.g., protective instruments that previously received
Services Administration
factors, coping strategies, social norms, OMB approval (OMB No. 0930–0286
Agency Information Collection and facilitators and barriers to student with Expiration Date: May 2010) and are
Activities: Submission for OMB access and receipt of behavioral currently in use. The Training
Review; Comment Request healthcare); campus interdepartmental Utilization and Preservation—Survey
collaboration and the relationship (TUP–S) is proposed as a new data
Periodically, the Substance Abuse and between various efforts to promote collection instrument.
Mental Health Services Administration student mental health and wellness; and • Prevention Strategies Inventory-
(SAMHSA) will publish a summary of the extent to which the campus State/Tribal (PSI ST)—Revised. The
information collection requests under infrastructures and supports promote Prevention Strategies Inventory will
OMB review, in compliance with the and address these factors. collect information on the suicide
Paperwork Reduction Act (44 U.S.C. To date, 86 State/Tribal grants and 93 prevention strategies that grantees have
Chapter 35). To request a copy of these Campus grants have participated in the developed and utilized. Prevention
documents, call the SAMHSA Reports cross-site evaluation, since FY2007. strategies include outreach and
Clearance Officer on (240) 276–1243. Currently, 48 State/Tribal grants and 38 awareness, gatekeeper training,
Campus grants are participating in the assessment and referral training for
Project: Cross-Site Evaluation of the
cross-site evaluation. Data will continue mental health professionals and hotline
Garrett Lee Smith Memorial Suicide
to be collected from suicide prevention staff, lifeskills development programs,
Prevention and Early Intervention screening programs, hotlines and
program staff (e.g., project directors,
Programs (OMB No. 0930–0286)— helplines, means restriction, policies
evaluators), key program stakeholders
Revision and protocols for intervention and
(e.g., state/local officials, child-serving
The Substance Abuse and Mental agency directors, gatekeepers, mental postvention, coalitions and
Health Services Administration’s health providers, and campus partnerships, and direct services and
(SAMHSA) Center for Mental Health administrators), training participants, traditional healing practices. Baseline
Services (CMHS) will continue to college students, and campus faculty/ data will be collected from the State/
conduct the cross-site evaluation of the staff through FY2012. Tribal grantees at the beginning of their
Garrett Lee Smith Memorial Youth Since the State/Tribal grantees differ grant cycle. Thereafter, they will
Suicide Prevention and Early from the campus grantees in complete the PSI ST on a quarterly basis
Intervention State/Tribal Programs and programmatic approaches, specific data over the duration of their grant period.
the Garrett Lee Smith Memorial Youth collection activities also vary by type of Baseline data will be collected on
Suicide Prevention Campus Programs. program. The following describes the information on the types of prevention
The data collected through the cross-site specific data collection activities and strategies grantees have developed and
evaluation addresses four stages of data collection instruments to be used utilized, and the follow-up data
program activity: (1) The context stage across State/Tribal and Campus grantees collection asks the grantees to update
includes a review of program plans, for the cross-site evaluation and the the information they have provided on
such as grantee’s target population, specific data collection instruments to a quarterly basis over the period of the
target region, service delivery be used by selected Campus grantees for grant. On average, 48 State/Tribal
mechanisms, service delivery setting, the Campus Case Studies. While most of grantees will fill out the PSI ST per year.
types of program activities to be funded the data collection instruments One respondent from each site will be
and evaluation activities; (2) the product described below are revised versions of responsible for completing the survey.
stage describes the prevention strategies instruments that have previously The survey will take approximately 45
that are developed and utilized by received OMB approval (OMB No. minutes; however, the number of
grantees; (3) the process stage assesses 0930–0286 with Expiration Date: May products, services and activities
progress on key activities and 2010) and are currently in use, the implemented under each strategy will
determine the number of items each months following the training Knowledge Survey—Student Version
respondent will complete. The PSI ST experience to assess whether the suicide (SPEAKS–S), Suicide Prevention
primarily has multiple-choice questions prevention knowledge, skills or Exposure, Awareness and Knowledge
with several open-ended questions. techniques learned through training Survey—Faculty/StaffVersion
• Training Exit Survey State-Tribal were utilized and had an impact on (SPEAKS–FS) and Campus
Version (TES ST)—Revised. The TES ST youth. On average, the TUP–I will be Infrastructure Interviews (CIFI) are
will be administered to all participants administered to 100 respondents per revised versions of instruments that
in suicide prevention training activities year. The interviews are semistructured previously received OMB approval
immediately following their training and open-ended. The TUP includes 22 (OMB No. 0930–0286 with Expiration
experience in order to assess the content items and will take approximately 40 Date: May 2010) and are currently in
of the training, the participants’ minutes to complete. use, and the Training Exit Survey—
intended use of the skills and • Referral Network Survey (RNS)— Campus (TES C) is proposed as a new
knowledge learned and satisfaction with Revision. The Referral Network Survey data collection instrument.
the training experience. The survey will (RNS) will be administered to • Prevention Strategies Inventory-
also contain modules with questions representatives of youth-serving Campus (PSI C)—Revision. The
tailored to specific types of training. It organizations or agencies that form Prevention Strategies Inventory will
is estimated that approximately 94,848 referral networks supporting youth collect information on the suicide
trainees per year will respond to the identified at risk. The RNS examines prevention strategies that grantees have
TES ST. The questions on the TES ST how collaboration and integration are developed and utilized. Prevention
are multiple-choice, Likert-scale, and used for sharing and transferring strategies include outreach and
open-ended. The survey includes about knowledge, resources, and technology awareness, gatekeeper training,
33 items and will take approximately 10 among State/Tribal Program agencies assessment and referral training for
minutes to complete. and organizational stakeholders, how mental health professionals and hotline
• Training Exit Survey Cover Page these networks influence referral staff, lifeskills development activities,
State/Tribal Version (TES CP)— mechanisms and service availability, screening programs, hotlines and
Revision. State and Tribal grantees are policies and protocols regarding follow- helplines, means restriction, policies
required to report aggregate training up for youths who have attempted and protocols for intervention and
participant information for all training suicide and who are at risk for suicide, postvention, and coalitions and
conducted as part of their suicide and access to electronic databases. Most partnerships. The Campus grantees will
prevention programs. These data are State/Tribal grantees will select a single first complete collecting baseline data.
aggregated from existing data sources, referral network for this survey, the Thereafter, they will collect follow-up
some of which are attendance sheets, average size of the network is 11 data on a quarterly basis over the
management information systems, etc. agencies/organizations and there will be duration of their grant period. Baseline
Grantees are responsible for aggregating 2 respondents per agency. The RNS will data will be collected on information on
these data and submitting to the cross- be administered to referral networks on the types of prevention strategies
site evaluation team using the TES CP. an annual basis over the period of the grantees have developed and utilized,
• Training Utilization and grant. On average, 1,056 respondents and the follow-up data collection asks
Preservation Survey (TUP–S)—New. The per year will complete the RNS. the grantees to update the information
Training Utilization and Preservation Questions on the RNS are multiple- they have provided on a quarterly basis
Survey (TUP–S) is a quantitative, choice, Likert-scale, and open-ended. over the period of the grant. On average,
computer-assisted telephone interview The RNS includes 28 items and will 38 Campus grantees will fill out the PSI
that will be administered to a random take approximately 30 minutes to C per year. One respondent from each
sample of trainees two months complete. site will be responsible for completing
following the training. The TUP–S will • Early Identification, Referral and the survey. The survey will take
assess trainee knowledge retention and Follow up Aggregate Screening Form— approximately 45 minutes. However,
gatekeeper behavior, particularly State/Tribal grantees are also required to the number of products, services and
behavior related to identifying youth at report aggregate screening information activities implemented under each
risk. The TUP–S will ask trainees to for all youth screened as part of their strategy will determine the number of
provide demographic information about suicide prevention programs. These data items to complete. The survey primarily
individuals they have identified at risk, are aggregated from existing data has multiple choice questions with
information about the subsequent sources. Grantees are responsible for several open-ended questions.
referrals or supports provided by the aggregating these data and submitting to • Training Exit Survey Campus
trainee, and any available information the cross-site evaluation team using the Version (TES C)—New. The TES C will
about services accessed by the at-risk Early Identification, Referral and Follow be administered to all participants in
individual. An average of 2,000 up Aggregate Screening Form. suicide prevention training activities
participants per year will be sampled. • Early Identification, Referral and immediately following their training
The TUP–S includes 26 items and will Follow Up Analyses—State/Tribal experience in order to assess the content
take approximately 10 minutes to grantees are required to share existing of the training, the participants’
complete. data with the cross-site evaluation team intended use of the skills and
• Training Utilization and on the number of youth identified at knowledge learned, and satisfaction
Preservation Key Informant Interview risk as a result of early identification with the training experience. The survey
(TUP–1)—Revision. The TUP–I is a activities, referred for services, and who will also contain modules with
qualitative follow-up interview that is present for services. questions tailored to specific types of
targeted towards locally developed and training. It is estimated that
understudied standardized training Data Collection Activities for Campuses approximately 23,712 trainees per year
curricula as well as towards particular For Campus grantees, the Prevention will respond to the Training Exit
understudied gatekeeper trainee Strategies Inventory-Campus Baseline Survey. The questions on the TES C are
populations. The TUP–I will be and Follow Up (PSI C), Suicide multiple-choice, Likert-scale, and open-
administered to respondents two Prevention Exposure, Awareness and ended. The survey includes about 33
items and will take approximately 10 team via teleconference for each campus maximum of 9 students. It is estimated
minutes to complete. twice during the life of the grant. These that on average 432 students will
• Training Exit Survey Cover Page semistructured interviews are participate in focus groups. Groups will
Campus Version (TES CP)—Revision. conducted with up to five site last approximately 90 minutes.
State and Tribal grantees are required to representatives to gather information • Faculty/Staff Focus Group
report aggregate training participant from multiple and varied perspectives Moderator’s Guide. The faculty and staff
information for all training conducted as on campus-based infrastructure focus groups will assess the campus’
part of their suicide prevention development around suicide prevention approach to prevention, attitudes and
programs. These data are aggregated activities. These representatives stigma around student mental health
from existing data sources, some of include; (1) Administrator, (2) Student and wellness on campus, campus
which are attendance sheets, Leader, (3) Counseling Center Staff, (4) infrastructure supports for students who
management information systems, etc. Faculty/Staff-human services need mental health help, and the
Grantees are responsible for aggregating department, and (5) Faculty/Staff-non- general campus climate around mental
these data and submitting to the cross- human service department. Questions health and wellness. Faculty and staff
site evaluation team using the TES CP. on the Campus Infrastructure Interview will also describe their knowledge of
• Suicide Prevention Exposure, include whether respondents are aware prevention activities on campus and
Awareness and Knowledge Survey— of suicide prevention activities, what their perceived effectiveness of these
Student Version (SPEAKS–S)—Revision. the campus culture is related to suicide efforts. Local campus staff will recruit
This survey will examine: The exposure prevention, and what specific efforts are appropriate respondents for the faculty
of campus populations to suicide in place to prevent suicide among the and staff focus groups to include a
prevention initiatives; awareness of campus population. Questions will maximum of 9 respondents per group.
appropriate crisis interventions, include close-ended background Two faculty focus groups and one staff
supports, services, and resources for questions, with the remaining questions focus group will be conducted on each
mental health seeking; knowledge of being open-ended and semi-structured. campus twice over the period of data
myths and facts related to suicide and It is estimated that on average 64 collection. It is estimated that 216
suicide prevention; perceived and respondents per year will respond to faculty/staff will participate in focus
personal stigma related to depression CIFI. The Campus Infrastructure groups. The groups will last
and mental health seeking; and Interviews include 29 items and will approximately 90 minutes.
behaviors related to seeking help and take approximately 60 minutes to
referring for mental health services. This • Case Study Key Informant
complete.
survey will be administered annually Interviews (7 versions). The Case Study
over the grant period. It is estimated that Data Collection Activities for Campus Key Informant Interviews (CSIs) include
7,600 students per year will respond to Case Studies 7 qualitative interview versions: (1)
the SPEAKS S. The SPEAKS–S is Web- For Campus Case Studies, the Administrator, (2) Counseling Staff, (3)
based and includes multiple-choice, instruments described below are Coalition Member—Faculty, (4)
Likert-scale and true/false questions. currently used by 2 Campus grantees. Prevention Staff, (5) Case Finder, (6)
The SPEAKS–Student Version includes These instruments are proposed for 4 Campus Police, and (7) Student Leader.
85 items and will take approximately 25 additional Campus grantees. The Local project staff will be responsible
minutes to complete. Campus Case Studies will take place for identifying appropriate respondents
• Suicide Prevention Exposure, over the period of the grant. for each CSI version and scheduling the
Awareness and Knowledge Survey— • Student Focus Group Moderator’s interview to occur during site visits by
(SPEAKS FS)—Revision. The SPEAKS– Guide. This component will assess the case study team. Fourteen
FS assesses the exposure, awareness and student risk and protective factors individuals from each of the campus
knowledge of suicide prevention related to mental health, help-seeking sites will be selected as key informants
activities among faculty/staff on campus behaviors, and knowledge of prevention to participate in the CSIs in each of the
as result of the suicide prevention activities on campus and their perceived two stages of the GLS Campus Case
program. Questions include whether effectiveness. This will help researchers Studies. Questions on the CSIs include
faculty/staff have been exposed to more fully understand student-level whether respondents are aware of
suicide prevention materials, their factors in relation to population-level suicide prevention activities, what the
agreement with myths and facts about factors addressed by the SPEAKS–S. campus culture is related to suicide
suicide, and the availability of resources Questions address stressors that prevention, and what specific efforts are
to provide assistance to those at risk for different groups of students face while in place to prevent suicide among the
suicide. This survey will be in college, barriers to seeking help, campus population. Items are formatted
administered annually over the grant attitudes and stigma related to seeking as open-ended and semi-structured
period. It is estimated that 1,900 faculty/ help, and the accessibility of the questions. The CSIs include 16 to 21
staff per year will respond to the campus counseling center. Six focus items and will take approximately 60
SPEAKS FS. The SPEAKS–FS is Web- groups will be conducted on each minutes to complete. On the second site
based and includes multiple-choice, campus twice over the data collection visit, the case study team will
Likert-scale and true/false questions. period. The following groups of incorporate preliminary findings from
The survey includes 54 items and will students will potentially be represented the case studies in the interviews,
take approximately 15 minutes to in the focus groups, as decided by the which may be modified to some extent
complete. campus: (1) First-year students, (2) to collect more comprehensive
• Campus Infrastructure Interviews athletes, (3) international students, (4) information and gather feedback from
(CIFI)—Revision. CIFI is designed to Lesbian, Gay, Bisexual, and Transgender local key informants surrounding the
gather information around campus (LGBT) students, (5) Greek life students, context of the preliminary findings. It is
infrastructure, program, policy, and (6) graduate students, and (7) residential estimated that the CSI will be
planning related to suicide prevention; advisors/peer educators. Recruitment administered to 112 respondents. The
it involves key informant interviews will be conducted by campus project CSIs for the second site visit will last 60
conducted by the cross-site evaluation staff. Focus groups will include a minutes.
In addition to the above described received are analyzed to determine the entry and management. The average
data collection activities, data from impact of Campus program activities on annual respondent burden is estimated
existing sources (i.e., management the student and campus populations. below. The estimate reflects the average
information systems (MIS), Because this information is obtained annual number of respondents, the
administrative records, case files, etc.) through existing sources, data collection average annual number of responses, the
will continue to be analyzed across instruments were not developed as part time it will take for each response, and
grantee sites to support the impact stage of the cross-site evaluation and no the average annual burden. While the
of the cross-site evaluation. For the identifiable respondents exist; therefore different cohorts of grantees finish their
cross-site evaluation of the Campus no respondent burden has been grants at different times, we have
programs, existing program data related estimated. assumed that new cohorts will replace
to the number of students who are at Internet-based technology will previous cohorts. Therefore, the number
risk for suicide, the number who seek continue to be used for collecting data of grantees in each year is assumed to
services, and the type of services via Web-based surveys, and for data be constant.
TABLE—ESTIMATES OF ANNUALIZED HOUR BURDEN

Number of Response
Number of Hours/
Measure name responses/ burden
respondents response
respondent (in hours)
Prevention Strategies Inventory—State Tribal (PSI–ST) ................................ 48 4 0.75 144

Training Exit Survey State/Tribal (TES–ST) .................................................... 94,848 1 0.17 16,125
Training Utilization and Penetration Survey (TUP–S) ..................................... 2,000 1 0.25 500
Training Utilization and Penetration Interview (TUP–I) ................................... 100 1 0.67 67
Referral Network Survey (RNS) ...................................................................... 1,024 1 0.67 687
Early Identification, Referral and Follow Up Analysis (EIRF) .......................... 48 4 1 192
Early Identification, Referral and Follow Up Aggregate Screening Form
(EIRF–S) ...................................................................................................... 48 4 0.33 64
Training Exit Survey Cover Page State/Tribal (TES–CP–ST) ........................ 48 4 0.33 64
Prevention Strategies Inventory—Campus (PSI–C) ........................................ 38 4 0.75 114
Training Exit Survey Campus (TES–C) ........................................................... 23,712 1 0.17 4,032
Suicide Prevention Exposure, Awareness and Knowledge Survey—Student
Version (SPEAKS–S) ................................................................................... 7,600 1 0.42 3,192
Suicide Prevention Exposure, Awareness and Knowledge Survey—Faculty/
Staff (SPEAKS–FS) ..................................................................................... 1,900 1 0.25 475
Campus Infrastructure Interview (CIFI) for Student ........................................ 38 1 0.75 29
Campus Infrastructure Interview (CIFI) for Faculty ......................................... 76 1 0.75 57
Campus Infrastructure Interview (CIFI) for Administrator ................................ 38 1 0.75 29
Campus Infrastructure Interview (CIFI) for Counselor .................................... 38 1 0.75 29
Training Exit Survey Cover Page Campus (TES–CP–C) ............................... 38 4 0.33 51
MIS Data Abstraction ....................................................................................... 38 4 0.33 51
Focus Group—Student Version ....................................................................... 216 1 1.5 324
Focus Group—Faculty Version ....................................................................... 72 1 1.5 108
Focus Group—Staff Version ............................................................................ 36 1 1.5 54
Interview—Student Leader Version ................................................................. 8 1 1 8
Interview—Case Finder Version ...................................................................... 4 1 1 4
Interview—Faculty Version .............................................................................. 8 1 1 8
Interview—Campus Police Version ................................................................. 8 1 1 8
Interview—Counseling Staff Version ............................................................... 8 1 1 8
Interview—Prevention Staff Version ................................................................ 12 1 1 12
Interview—Administrator Version ..................................................................... 8 1 1 8
Total .......................................................................................................... 132,060 ........................ ........................ 26,444
ANNUALIZED SUMMARY TABLE

Total
Number of Responses/ Total
Respondents annualized
respondents respondent responses hour burden
STATE/TRIBAL CROSS–SITE EVALUATION INSTRUMENTS
Project Evaluators ............................................................................................ 192 16 768 464

Providers .......................................................................................................... 97,972 4 97,972 17,379
CAMPUS CROSS-SITE EVALUATION INSTRUMENTS

Project Evaluators ............................................................................................ 114 12 1,368 216

Students ........................................................................................................... 7,638 2 7,638 3,221
Campus Staff ................................................................................................... 2,052 4 2,052 590
Providers .......................................................................................................... 23,712 1 23,712 4,032
CAMPUS CASE STUDY INSTRUMENTS
Students ........................................................................................................... 228 3 228 336
ANNUALIZED SUMMARY TABLE—Continued

Total
Number of Responses/ Total
Respondents annualized
respondents respondent responses hour burden
Campus Staff ................................................................................................... 152 7 152 206
Total .......................................................................................................... 132,060 49 133,890 26,444
Written comments and plans, call the SAMHSA Reports of SBIRT on patient outcomes,
recommendations concerning the Clearance Officer on (240) 276–1243. performance site practices, and
proposed information collection should Comments are invited on: (a) Whether treatment systems. This information
be sent by July 2, 2010 to: SAMHSA the proposed collections of information will allow SAMHSA to determine the
Desk Officer, Human Resources and are necessary for the proper extent to which SBIRT has met its
Housing Branch, Office of Management performance of the functions of the objectives of implementing a
and Budget, New Executive Office agency, including whether the comprehensive system of identification
Building, Room 10235, Washington, DC information shall have practical utility; and care to meet the needs of
20503; due to potential delays in OMB’s (b) the accuracy of the agency’s estimate individuals at all points along the
receipt and processing of mail sent of the burden of the proposed collection substance use continuum.
through the U.S. Postal Service, of information; (c) ways to enhance the A paper and pencil survey will be
respondents are encouraged to submit quality, utility, and clarity of the administered to practitioners in sites
comments by fax to: 202–395–6974. information to be collected; and (d) where SBIRT services are being
ways to minimize the burden of the delivered. The practitioner survey is
collection of information on designed to evaluate the
Elaine Parry, respondents, including through the use implementation of proposed SBIRT
Director, Office of Program Services. of automated collection techniques or models by measuring their penetration
[FR Doc. 2010–13146 Filed 6–1–10; 8:45 am] other forms of information technology. and practitioners’ willingness to adopt.
BILLING CODE 4162–20–P Furthermore, the survey will document
Proposed Project: Screening, Brief
Intervention, Brief Treatment and moderating factors related to
Referral to Treatment (SBIRT) Cross- practitioner and health care delivery
DEPARTMENT OF HEALTH AND Site Evaluation—New unit characteristics.
HUMAN SERVICES
SAMHSA is conducting a cross-site The 93 question practitioner survey
Substance Abuse and Mental Health external evaluation of the impact of includes collection of demographic
Services Administration programs of screening, brief information as well as questions that
intervention (BI), brief treatment (BT) attempt to assess barriers to
Agency Information Collection and referral to treatment on patients implementation encountered by the
Activities: Proposed Collection; presenting at various health care practitioners and to gauge the
Comment Request delivery units with a continuum of effectiveness of the training they
severity of substance use. SAMHSA’s received. These measures were
In compliance with Section SBIRT program is a cooperative developed and used by Babor et al.
3506(c)(2)(A) of the Paperwork agreement grant program designed to (2005) in their comparable study
Reduction Act of 1995 concerning help States and Tribal Councils expand comparing different implementation
opportunity for public comment on the continuum of care available for strategies for primary care screening and
proposed collections of information, the substance misuse and use disorders. brief intervention programs for
Substance Abuse and Mental Health The program includes screening, brief hazardous and harmful drinkers. The
Services Administration will publish intervention, brief treatment and practitioner survey also includes an
periodic summaries of proposed referrals to treatment for persons at risk instrument developed by Panzano and
projects. To request more information for dependence on alcohol or drugs. The Roth (2006) to measures an
on the proposed projects or to obtain a cross-site evaluation will provide a organization’s willingness to adopt new
copy of the information collection comprehensive assessment of the effects innovative practices.
TOTAL BURDEN HOURS FOR THE CROSS-SITE PATIENT SURVEY

Responses Total
Number of Hours per Total burden
Instrument/Activity per Hourly wage respondent
respondents response hours
respondent cost a
Practitioner Survey ................................... 1,075 1 .30 322.5 $32 $10,320

Send comments to Summer King, Submit electronic comments in the II. Request for Data and Information
SAMHSA Reports Clearance Officer, following way:
Room 7–1044, One Choke Cherry Road, • Federal eRulemaking Portal: http:// We invite all interested persons to
Rockville, MD 20857. Written comments www.regulations.gov. Follow the submit data and information, as
should be received within 60 days of instructions for submitting comments. described in § 330.14(f), on the safety
this notice. Written Submissions and effectiveness of drometrizole
Submit written submissions in the trisiloxane for use as an active
Dated: May 25, 2010. ingredient in OTC sunscreen products.
following ways:
Elaine Parry, • FAX: 301–827–6870. The data should be sufficient so that we
Director, Office of Program Services. • Mail/Hand delivery/Courier (for can determine whether the ingredient
[FR Doc. 2010–13145 Filed 6–1–10; 8:45 am] paper, disk, or CD–ROM submissions): can be GRASE and not misbranded
BILLING CODE 4162–20–P Division of Dockets Management (HFA– under recommended conditions of OTC
305), Food and Drug Administration, use. Interested parties may refer to 21
5630 Fishers Lane, rm. 1061, Rockville, CFR 330.10(a)(4) regarding the evidence
DEPARTMENT OF HEALTH AND MD 20852. necessary for establishing general
HUMAN SERVICES Instructions: All submissions received recognition of safety and effectiveness.
must include the agency name and Because the TEA that we reviewed
Food and Drug Administration docket number. All comments received did not include an official or proposed
may be posted without change to http:// United States Pharmacopeia-National
[Docket No. FDA–2003–N–0196] (formerly www.regulations.gov, including any Formulary (USP–NF) drug monograph
Docket No. 2003N–0233) personal information provided. for drometrizole trisiloxane, we are
Docket: For access to the docket to
asking interested parties to provide such
Drometrizole Trisiloxane Eligibility for read background documents or
a monograph to us. An active ingredient
Potential Inclusion in Sunscreen comments received, go to http://
must be recognized in an official USP–
Monograph; Over-the-Counter www.regulations.gov and insert the
NF drug monograph that sets forth its
Sunscreen Drug Products for Human docket number, found in brackets in the
standards of identity, strength, quality,
Use; Request for Safety, Effectiveness, heading of this document, into the
‘‘Search’’ box and follow the prompts and purity in order to be included in a
and Environmental Data
and/or go to the Division of Dockets final OTC monograph (§ 330.14(i)).
AGENCY: Food and Drug Administration, Management, 5630 Fishers Lane, rm. In addition, as stated in 21 CFR 25.1,
HHS. 1061, Rockville, MD 20852. FDA regulations must comply with
ACTION: Notice of eligibility; request for FOR FURTHER INFORMATION CONTACT: NEPA. To comply with NEPA, an
data and information. Anita Kumar, Center for Drug environmental assessment (EA) of
Evaluation and Research, Food and agency actions is required unless we
SUMMARY: As part of our ongoing review determine that a categorical exclusion is
Drug Administration, 10903 New
of over-the-counter (OTC) drug warranted. Therefore, we also invite all
Hampshire Ave., Bldg. 22, rm. 5445,
products, we (Food and Drug interested persons to either submit data
Silver Spring, MD 20993, 301–796–
Administration, FDA) are announcing a and information that would support a
2090.
call-for-data for safety, effectiveness, determination that the potential
and environmental information for SUPPLEMENTARY INFORMATION:
inclusion of drometrizole trisiloxane in
drometrizole trisiloxane, in I. Eligibility of Drometrizole Trisiloxane the OTC monograph for sunscreen
concentrations up to 15 percent, as a meets the requirements for any
sunscreen single active ingredient and In January 2009, we received a TEA
(Ref. 1) requesting that drometrizole categorical exclusion found in 21 CFR
in combination with generally 25.31, or to prepare an EA, if necessary.
recognized as safe and effective trisiloxane be found eligible for review
and potential inclusion in our OTC For additional information on the types
(GRASE) sunscreen active ingredients of information that would support our
found in the sunscreen monograph. We sunscreen drug monograph (part 352 (21
CFR part 352)). After reviewing the environmental assessment, please refer
reviewed a time and extent application to section IV (pages 9 through 27) of the
TEA, we believe that it includes
(TEA) for drometrizole trisiloxane and Center for Drug Evaluation and Research
adequate data demonstrating that
determined that it is eligible to be Guidance on Environmental Assessment
drometrizole trisiloxane has been
considered for inclusion in our OTC of Human Drug and Biologic
marketed for the prevention of sunburn
drug monograph system. We will Applications. The guidance document
for a material time and to a material
evaluate the submitted safety and can be viewed at http://www.fda.gov/
extent as required by § 330.14 (21 CFR
effectiveness data and information to downloads/Drugs/GuidanceCompliance
330.14) (Ref. 2). Drometrizole
determine whether drometrizole RegulatoryInformation/Guidances/
trisiloxane-containing sunscreen
trisiloxane can be GRASE for its ucm070561.pdf.
products indicated for the prevention of
proposed OTC use. We also request data sunburn have been marketed directly to For all data and information
and information to assess the projected consumers for over 5 continuous years submitted, we request that a submitter
environmental effects of a potential in 40 countries, with over 177 million segregate any data or information that
GRASE determination in order to assist dosage units marketed in 54 countries. the submitter believes is protected from
us in complying with the requirements Therefore, we conclude that disclosure by 5 U.S.C. 552(b), 18 U.S.C.
of the National Environmental Policy drometrizole trisiloxane, in 1905, or 21 U.S.C. 331(j) or 360j(c). If
Act of 1969 (NEPA). concentrations up to 15 percent, is such data or information is included in

DATES: Submit data, information, and eligible to be considered for potential the submission, we request that the
general comments by August 31, 2010. inclusion in the OTC sunscreen drug submitter summarize the confidential
ADDRESSES: You may submit comments, monograph as a single active ingredient information, to the extent possible, so
identified by Docket No. FDA–2003–N– and in combination with GRASE that the summary can be publicly
0196, by any of the following methods: sunscreen active ingredients found in disclosed (see 21 CFR 25.50 and
Electronic Submissions § 352.10. 25.51(a); § 330.14(f)).
III. Marketing Policy elaine.ferguson@fda.hhs.gov, or FDA hearing session. The contact person will
Under § 330.14(h), any sunscreen Advisory Committee Information Line, notify interested persons regarding their
product containing drometrizole 1–800–741–8138 (301–443–0572 in the request to speak by July 7, 2010.
trisiloxane may not be marketed as an Washington, DC area), code Persons attending FDA’s advisory
OTC drug in the United States at this 3014512533. Please call the Information committee meetings are advised that the
time unless it is the subject of an Line for up-to-date information on this agency is not responsible for providing
approved new drug application or meeting. A notice in the Federal access to electrical outlets.
Register about last minute modifications FDA welcomes the attendance of the
abbreviated new drug application.
that impact a previously announced public at its advisory committee
IV. References advisory committee meeting cannot meetings and will make every effort to
The following references are on always be published quickly enough to accommodate persons with physical
display in the Division of Dockets provide timely notice. Therefore, you disabilities or special needs. If you
Management (see ADDRESSES) under should always check the agency’s Web require special accommodations due to
Docket No. FDA–2003–N–0196 and may site and call the appropriate advisory a disability, please contact Elaine
be seen by interested persons between 9 committee hot line/phone line to learn Ferguson at least 7 days in advance of
a.m. and 4 p.m., Monday through about possible modifications before the meeting.
Friday. coming to the meeting. FDA is committed to the orderly
Agenda: On July 28, 2010, the conduct of its advisory committee
1. Redacted TEA for drometrizole
committee will discuss new drug meetings. Please visit our Web site at
trisiloxane submitted by L’Oreal USA
application (NDA) 22–433, ticagrelor http://www.fda.gov/Advisory
Products, Inc., dated January 21, 2009.
tablets, 90 milligrams, manufactured by Committees/AboutAdvisoryCommittees/
2. FDA’s evaluation of the TEA for
AstraZeneca LP, for the proposed ucm111462.htm for procedures on
drometrizole trisiloxane.
indication for use in acute coronary public conduct during advisory
Dated: May 25, 2010. syndrome (including heart attacks and committee meetings.
Leslie Kux, any of a group of signs and symptoms, Notice of this meeting is given under
Acting Assistant Commissioner for Policy. such as chest pain or shortness of the Federal Advisory Committee Act (5
[FR Doc. 2010–13001 Filed 6–1–10; 8:45 am] breath, that are consistent with U.S.C. app. 2).
BILLING CODE 4160–01–S blockages in the blood vessels that Dated: May 27, 2010.
supply the heart).
FDA intends to make background Jill Hartzler Warner,
material available to the public no later Acting Associate Commissioner for Special
DEPARTMENT OF HEALTH AND Medical Programs.
HUMAN SERVICES than 2 business days before the meeting.
If FDA is unable to post the background [FR Doc. 2010–13141 Filed 6–1–10; 8:45 am]
Food and Drug Administration material on its Web site prior to the BILLING CODE 4160–01–S
meeting, the background material will
[Docket No. FDA–2010–N–0001]
be made publicly available at the
location of the advisory committee DEPARTMENT OF HEALTH AND
Cardiovascular and Renal Drugs HUMAN SERVICES
Advisory Committee; Notice of Meeting meeting, and the background material
will be posted on FDA’s Web site after
AGENCY: Food and Drug Administration, the meeting. Background material is Centers for Medicare & Medicaid
HHS. available at http://www.fda.gov/ Services
ACTION: Notice. AdvisoryCommittees/Calendar/ Privacy Act of 1974; CMS Computer
default.htm. Scroll down to the Match No. 2010–03, HHS Computer
This notice announces a forthcoming appropriate advisory committee link.
meeting of a public advisory committee Match No. 1003, SSA Computer Match
Procedure: Interested persons may
of the Food and Drug Administration No. 1048, IRS Project No. 241
present data, information, or views,
(FDA). The meeting will be open to the orally or in writing, on issues pending AGENCY: Department of Health and
public. before the committee. Written Human Services (HHS), Centers for
Name of Committee: Cardiovascular submissions may be made to the contact Medicare & Medicaid Services (CMS).
and Renal Drugs Advisory Committee. person on or before July 14, 2010. Oral ACTION: Notice of renewal of an existing
General Function of the Committee: presentations from the public will be computer matching program (CMP) that
To provide advice and scheduled between approximately 1 has an expiration date of June 30, 2010.
recommendations to the agency on p.m. and 2 p.m. Those desiring to make
FDA’s regulatory issues. formal oral presentations should notify SUMMARY: In accordance with the
Date and Time: The meeting will be the contact person and submit a brief requirements of the Privacy Act of 1974,
held on July 28, 2010, from 8 a.m. to 5 statement of the general nature of the as amended, this notice announces the
p.m. evidence or arguments they wish to renewal of an existing CMP between
Location: The Marriott Inn and present, the names and addresses of CMS, the Internal Revenue Service
Conference Center, University of proposed participants, and an (IRS), and the Social Security
Maryland University College, 3501 indication of the approximate time Administration (SSA). We have
University Blvd. East, Adelphi, MD. The requested to make their presentation on provided information about the
conference center telephone number is or before July 6, 2010. Time allotted for matching program in the
301–985–7300. each presentation may be limited. If the SUPPLEMENTARY INFORMATION section

Contact Person: Elaine Ferguson, c/o number of registrants requesting to below. The Privacy Act provides an
Christine Shipe, Food and Drug speak is greater than can be reasonably opportunity for interested persons to
Administration, 10903 New Hampshire accommodated during the scheduled comment on the matching program. We
Ave., Bldg. 31, rm. 2419, Silver Spring, open public hearing session, FDA may may defer implementation of this
MD 20993–0002, 301–796–9001, FAX: conduct a lottery to determine the matching program if we receive
301–847–8532, e-mail: speakers for the scheduled open public comments that persuade us to defer
implementation. See ‘‘Effective Dates’’ Negotiate written agreements with the information relating to taxpayer identity
section below for comment period. other agencies participating in the to SSA, and (2) SSA agrees to disclose
matching programs; return information relating to
DATES: Effective Dates: CMS filed a
Obtain the Data Integrity Board approval beneficiary and employer identity,
report of the Computer Matching commingled with information disclosed
Program (CMP) with the Chair of the of the match agreements;
Furnish detailed reports about matching by the IRS, to CMS. These disclosures
House Committee on Oversight and will provide CMS with information to
Government Reform, the Chair of the programs to Congress and OMB;
determine the extent to which any
Senate Committee on Homeland Notify applicants and beneficiaries that Medicare beneficiary is covered under
Security and Governmental Affairs, and the records are subject to matching; any Group Health Plan (GHP).
the Acting Administrator, Office of and
Information and Regulatory Affairs, Verify match findings before reducing, CATEGORIES OF RECORDS AND INDIVIDUALS
Office of Management and Budget suspending, terminating, or denying COVERED BY THE MATCH:
(OMB) on May 19, 2010. We will not an individual’s benefits or payments. IRS will disclose taxpayer identity
disclose any information under a information from the CADE (Customer
B. CMS Computer Matches Subject to
matching agreement until 40 days after Account Data Engine) Individual Master
the Privacy Act
filing a report to OMB and Congress or File (IMF), Treasury/IRS 24.030,
30 days after publication in the Federal CMS has taken action to ensure that published at 73 FR 13304 (March 12,
Register whichever is later. all CMPs that this Agency participates 2008), and maintained at the
in comply with the requirements of the Martinsburg Computing Center in
ADDRESSES: The public should address Privacy Act of 1974, as amended. Martinsburg, West Virginia. This file
comments to: Walter Stone, CMS Dated: May 21, 2010. includes millions of records of
Privacy Officer, Division of Information taxpayers who have filed Federal
Michelle Snyder,
Security & Privacy Management, Individual Income Tax Returns. IRS
Deputy Chief Operating Officer, Centers for
Enterprise Architecture and Strategy established Project 241, IMF/Medicare
Medicare & Medicaid Services.
Group, Office of Information Services Beneficiary Match to facilitate this
(OIS), CMS, Mail stop N1–24–08, 7500 CMS Computer Match No. 2010–03 matching program.
Security Boulevard, Baltimore, HHS Computer Match No. 1003 SSA will extract identifying
Maryland 21244–1850. Comments SSA Computer Match No. 1048
IRS Project No. 241 information of Medicare beneficiaries
received will be available for review at from the Master Beneficiary Record
this location, by appointment, during NAME: (MBR), SSA/OSR 60–0090, published at
regular business hours, Monday through ‘‘Medicare Secondary Payer (MSP) 71 FR. 1826 (January 11, 2006) and
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SECURITY CLASSIFICATION:
FOR FURTHER INFORMATION CONTACT: John includes records of individuals who
Level Three Privacy Act Sensitive. have received and are receiving benefits
Albert, Technical Advisor, Division of
Medicare Benefits Coordination, PARTICIPATING AGENCIES:
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Financial Services Group, Office of extract employer identity information
Internal Revenue Service (IRS), Social
Financial Management, CMS, Mail stop from the Earnings Recording and Self-
Security Administration (SSA), and the
C3–14–16, 7500 Security Boulevard, employment Income System, SSA/0SR
Centers for Medicare & Medicaid
Baltimore, Maryland 21244–1850. The 60–0059, referred to as the Master
Services (CMS).
telephone number is (410) 786–7457, or Earnings File (MEF) published at 71 FR.
e-mail at John.Albert@cms.hhs.gov. AUTHORITY FOR CONDUCTING MATCHING 1819 (January 11, 2006) and maintained
PROGRAM: at the NCC. This file contains earnings
SUPPLEMENTARY INFORMATION: This Matching Agreement between records of individuals including
IRS, SSA and CMS is executed pursuant identifying information of their
Description of the Matching Program
to the Privacy Act of 1974 (5 U.S.C. employees. SSA will also extract
A. General 552a), as amended, (as amended by Pub. employer name and address from the
L. 100–503, the Computer Matching and Employer Identification File (EIF).
The Computer Matching and Privacy Privacy Protection Act (CMPPA) of CMS will utilize a database, Medicare
Protection Act of 1988 (Pub. L. 100–503) 1988), the Office of Management and Advantage Prescription Drug System
amended the Privacy Act (5 U.S.C. 552a) Budget (OMB) Circular A–130, titled (MARx) CMS System No. 09–70–4001,
by describing the manner in which ‘‘Management of Federal Information published at 70 FR 60530 (October 18,
computer matching involving Federal Resources’’ at 61 FR 6428–6435 2005), maintained at the CMS Data
agencies could be performed and adding (February 20, 1996), and OMB Center, located in Baltimore, Maryland,
certain protections for individuals guidelines pertaining to computer of the GHP information received from
applying for and receiving Federal matching at 54 FR 25818 (June 19, employers containing verified instances
benefits. Section 7201 of the Omnibus 1989). of employment and GHP coverage for
Budget Reconciliation Act of 1990 (Pub. This agreement implements the Medicare beneficiaries and Medicare-
L. 101–508) further amended the information matching provisions of eligible spouses identified from the IMF,
Privacy Act regarding protections for § 6103(l)(12) of the Internal Revenue EIF, and MEF extracts.
such individuals. The Privacy Act, as Code (IRC) (26 U.S.C 6103(1)(12)), and CMS will match GHP information
amended, regulates the use of computer 1862(b)(5) of the Social Security Act (42 against the Medicare Multi Carrier
matching by Federal agencies when U.S.C. 1395y(b)(5)). Claims System (MCS) (formerly known
records in a system of records are as Carrier Medicare Claims Records),
matched with other Federal, State, or PURPOSE(S) OF THE MATCHING PROGRAM: CMS System No. 09–70–0501,
local government records. It requires The purpose of this agreement is to published at 71 FR. 64968 (November 6,
Federal agencies involved in computer establish the conditions under which: 2006), maintained at the CMS Data
matching programs to: (1) IRS agrees to disclose return Center, located in Baltimore, Maryland.
These files contain information received DEPARTMENT OF HEALTH AND of section 2125(b); advising the
from employers containing verified HUMAN SERVICES Secretary on the methods of obtaining,
instances of employment and GHP compiling, publishing, and using
coverage for Medicare beneficiaries and Health Resources and Services credible data related to the frequency
Medicare-eligible spouses identified Administration and severity of adverse reactions
from the IMF, EIF, and MEF extracts. associated with childhood vaccines;
Advisory Commission on Childhood consulting on the development or
CMS will match GHP information Vaccines; Request for Nominations for revision of the Vaccine Information
against the Fiscal Intermediary Shared Voting Members Statements and recommending to the
System (FISS) (formerly known as Director of the National Vaccine
Intermediary Medicare Claims Records), AGENCY: Health Resources and Services
Administration, HHS. Program that vaccine safety research be
CMS System No. 09–70–0503, conducted on various vaccine injuries.
published at 71 FR 64961 (November 6, ACTION: Notice. The ACCV consists of nine voting
2006), maintained at the CMS Data SUMMARY: The Health Resources and
members appointed by the Secretary as
Center, located in Baltimore, Maryland. Services Administration (HRSA) is follows: (1) Three health professionals,
This file contains information or records requesting nominations to fill three who are not employees of the United
needed to properly process and pay vacancies on the Advisory Commission States Government and have expertise
Medicare benefits to, or on behalf of, on Childhood Vaccines (ACCV). The in the health care of children, and the
eligible individuals. CMS accesses this epidemiology, etiology, and prevention
ACCV was established by Title XXI of
file upon receiving a claim for payment. of childhood diseases, and the adverse
the Public Health Service Act (the Act),
reactions associated with vaccines, at
CMS will match GHP information as enacted by Public Law (Pub. L.) 99–
least two shall be pediatricians; (2) three
against the Common Working File 660 and as subsequently amended,
members from the general public, at
(CWF), CMS System No. 09–70–0526, advises the Secretary of Health and
least two shall be legal representatives
published at 71 FR 64955 (November 6, Human Services (the Secretary) on
(parents or guardians) of children who
2006), which is the repository data base issues related to implementation of the
have suffered a vaccine-related injury or
for all current hospital and medical National Vaccine Injury Compensation
death; and (3) three attorneys, at least
coverage MSP information, maintained Program (VICP).
one shall be an attorney whose specialty
at the CMS Data Center, located in DATES: The agency must receive includes representation of persons who
Baltimore, Maryland. These files nominations on or before July 2, 2010. have suffered a vaccine-related injury or
contain information or records needed ADDRESSES: All nominations are to be death, and one shall be an attorney
to properly process and pay medical submitted to the Director, Division of whose specialty includes representation
insurance benefits to, or on behalf of, Vaccine Injury Compensation, of vaccine manufacturers. In addition,
entitled beneficiaries who have Healthcare Systems Bureau (HSB), the Director of the National Institutes of
submitted claims for Supplementary HRSA, Parklawn Building, Room 11C– Health, the Assistant Secretary for
Medical Insurance Benefits (Medicare 26, 5600 Fishers Lane, Rockville, Health, the Director of the Centers for
Part B). CMS accesses this file upon Maryland 20857. Disease Control and Prevention, and the
receiving a claim for payment. FOR FURTHER INFORMATION CONTACT: Ms. Commissioner of the Food and Drug
Andrea Herzog, Principal Staff Liaison, Administration (or the designees of such
CMS will match GHP information officials) serve as nonvoting ex officio
Policy Analysis Branch, Division of
against the National Claims History members.
Vaccine Injury Compensation, HSB,
(NCH), which is contained in the HRSA at (301) 443–6634 or e-mail: Specifically, HRSA is requesting
National Claims History File, CMS aherzog@hrsa.gov. nominations for three voting members
System No. 09–70–0558, published at of the ACCV representing: (1) A health
71 FR 67137 (November 20, 2006), SUPPLEMENTARY INFORMATION: Under the professional, who has expertise in the
maintained at the CMS Data Center, authorities that established the ACCV, health care of children; and the
located in Baltimore, Maryland. NCH the Federal Advisory Committee Act of epidemiology, etiology, and prevention
contains records needed to facilitate October 6, 1972 (Pub. L. 92–463) and of childhood diseases; (2) an attorney
obtaining Medicare utilization review section 2119 of the Act, 42 U.S.C. whose specialty includes representation
300aa–19, as added by Pub. L. 99–660 of persons who have suffered a vaccine-
data that will be useful for studies of the
and amended, HRSA is requesting related injury or death; and (3) a
operation and effectiveness of the
nominations for three voting members member of the general public who is the
Medicare program. of the ACCV. legal representative (parents or
The ACCV advises the Secretary on guardians) of a child who has suffered
INCLUSIVE DATES OF THE MATCH:
the implementation of the VICP. The a vaccine related injury or death.
The Matching Program shall become activities of the ACCV include: Nominees will be invited to serve a 3-
effective 40 days after the report of the Recommending changes in the Vaccine year term beginning January 1, 2011,
Matching Program is sent to OMB and Injury Table at its own initiative or as and ending December 31, 2014.
Congress, or 30 days after publication in the result of the filing of a petition; Interested persons may nominate one
the Federal Register, which ever is later. advising the Secretary in implementing or more qualified persons for
The matching program will continue for section 2127 regarding the need for membership on the ACCV. Nominations
18 months from the effective date and childhood vaccination products that shall state that the nominee is willing to
may be extended for an additional 12 result in fewer or no significant adverse serve as a member of the ACCV and
months thereafter, if certain conditions reactions; surveying Federal, State, and appears to have no conflict of interest
are met. local programs and activities related to that would preclude ACCV
gathering information on injuries membership. Potential candidates will
[FR Doc. 2010–13000 Filed 6–1–10; 8:45 am]
associated with the administration of be asked to provide detailed information
BILLING CODE P childhood vaccines, including the concerning consultancies, research
adverse reaction reporting requirements grants, or contracts to permit evaluation
of possible sources of conflicts of Authority: This program is authorized legislation. Educational materials were
interest. A curriculum vitae or resume under Public Health Service Act, Section developed for dissemination to the
should be submitted with the 301(a). This program is described in the White House, HHS, Tribal Governments
Catalog of Federal Domestic Assistance
nomination. and other organizations regarding the
93.933.
The Department of Health and Human priorities and concerns of Tribes as
Services has special interest in assuring Application Deadline: June 4, 2010. related to health care/insurance reform
that women, minority groups, and the Anticipated Award Date: June 15, efforts, IHCIA passage and other health
physically disabled are adequately 2010. delivery priorities. Their Web site has
represented on advisory committees; Summary: The IHS announces the become a primary source of information
and therefore, extends particular award of supplemental projects under to Tribal leaders on healthcare policy
encouragement to nominations for the existing single source cooperative issues and is often quoted by national
appropriately qualified female, agreement award to the NIHB, Inc. The
healthcare policy experts. Their
minority, or disabled candidates. Office of Direct Service and Contracting
outreach and education efforts focused
Tribes (ODSCT) has designated
Dated: May 25, 2010. to assist with increased enrollment of
supplemental funds for the single
Sahira Rafiullah, AI/AN beneficiaries in Medicaid and
source award to the NIHB to further
Director, Division of Policy and Information Medicare programs and their annual
health program objectives in the
Coordination. Consumer Conference is a showplace for
American Indian/Alaska Natives (AI/
[FR Doc. 2010–13150 Filed 6–1–10; 8:45 am] innovative Tribal practices in healthcare
AN) community with outreach and
administration. Their ability to bring
BILLING CODE 4165–15–P education efforts in the interest of
together Tribes and Federal agencies in
improving Indian health care. The NIHB
is the only national Indian organization an effort to explore new avenues of
DEPARTMENT OF HEALTH AND with expertise on the variety of issues cooperation and problem solving is an
HUMAN SERVICES related to the provision of health care to invaluable resource to everyone
the Indian population. involved. They were instrumental in
Indian Health Service Single Source Justification: The NIHB supporting program initiatives
is governed by twelve elected Tribal associated with diabetes, suicide
Statutorily Mandated Single Source prevention, children’s health insurance
Award Program Name: National Indian Government Officials who represent
each of the twelve IHS Areas and the and H1N1 prevention activities and will
Health Board remain a solid supporter of improved
HHS regions where federally recognized
AGENCY: Indian Health Service, HHS. Tribes exist. The NIHB represents all healthcare in Indian Country. Hence,
ACTION: Notice of Intent to provide 564 federally recognized Tribes: this all demonstrates the capability and
supplemental funding to the existing including Tribal Governments operating substantiates the need for a non-
cooperative agreement with the National their own health care delivery systems competitive single source award to be
Indian Health Board (NIHB), Inc. through self-determination agreements approved and continuity sustained.
with the IHS and Tribes that continue Supplemental funds have been added to
Project Period: Dates: June 15– to receive health care directly from the the cooperative agreement and are non-
December 31, 2010. IHS. The NIHB is the only national recurring for purposes that are related to
Amount of Award: Funding amounts Indian organization with an expertise in the goals of the NIHB and support the
for each project, per Agency are health policy and health programs, and scope of work of the cooperative
delineated below. All project funding is the only national organization with the agreement. The nature of the program
subject to available funds; hence all designated authority to represent all AI/ and this agreement should allow other
supplemental projects outlined in this AN Tribes and villages. The NIHB has HHS operating divisions to supplement
notice may not be awarded if the a national constituency and clearly the NIHB agreement when those funds
Agency does not identify funding for supports critical services and activities support the original intent of the
each activity. within the IHS mission of quality health original agreement.
Indian Health Service (IHS) Funding care for AI/AN people. The NIHB can This non-competitive single source
provide advice, consultation and health cooperative agreement will assist the
(1) Budget Formulation not to exceed agency in furthering our health program
$65,000. care advocacy to IHS and HHS based on
Tribal input through a broad based objectives in the AI/AN community;
(2) Methamphetamine Abuse and failure to approve the agreement will:
Suicide Prevention Initiative (MSPI) not consumer network.
The NIHB offers a national network of Impede consultation with AI/AN Tribal
to exceed $50,000. Governments; impede further education
(3) IHS Medicaid, Medicare Policy professional services to provide policy
analysis and development, program of health policy and legislation; would
Committee (MMPC) not to exceed
assessment and development and substantially increase the cost of
$100,000.
regional and national meeting securing these services should the IHS
Centers for Medicare and Medicaid coordination. NIHB also provides be required to secure these services
Services (CMS) Funding planning and technical assistance to through a multitude of Area and
(1) Study and improve the Tribes, Area Health Boards, other Tribal regional Health Boards; and impede
administration and effectiveness of the organizations, the IHS and HHS, other targeting of future resources to AI/AN
Medicare, Medicaid and Children’s agencies within the Federal communities by IHS and HHS.
Health Insurance Program (CHIP) in Government, private grant-making Use of Cooperative Agreement: A
Indian County not to exceed $450,000. foundations, and other organizations. cooperative agreement has been
(2) Data Analysis, Consultation and Past performance of NIHB under a awarded because of anticipated
Training not to exceed $250,000. cooperative agreement has been substantial programmatic involvement
(3) American Recovery and exceptional. The NIHB has consistently by IHS staff in the project. Substantial
Reinvestment Act (ARRA) Health provided education and outreach to programmatic involvement is as follows:
Information Technology (HIT) not to Tribal leadership regarding the potential The NIHB is responsible for the
exceed $100,000. impact of Health Care Reform following:
1. To provide technical advice in the methamphetamine and suicide instructions. Hard copy applications
area of health care policy analysis and prevention issues; (b) assess and report will be accepted from the applicant.
program development on which IHS on the status of methamphetamine and Grants.gov submissions are not required
needs to take action; suicide prevention activities in Tribal under this notification.
2. To provide consultation that is communities; and (c) create and/or Review Criteria:
representative of all Tribal Governments provide outreach, communication and
A. Project Objective(s), Work Plan and
in the area of health care policy analysis educational materials and/or activities
Consultants (40 Points)
and program development; on this topic.
3. To assure that health care advocacy (3) IHS MMPC—The NIHB will (1) Identify the proposed project
is based on Tribal input through a provide logistical and administrative objective(s) addressing the following:
broad-based consumer network support to the IHS MMPC. This Measurable and (if applicable)
involving the Area Indian Health Boards includes convening the Committee for quantifiable, results oriented, time-
or Health Board Representatives from conference calls and meetings; limited.
each of the twelve IHS areas; generating reports from such activities, (2) Address how the proposed project
4. To provide an opportunity for and disseminating information to Tribes will result in change or improvement in
Tribal Government officials to share and Tribal organizations. program operations or processes for
their concerns, challenges, and (4) CMS—Study and improve the each proposed project objective. Also
recommendations for improving health administration and effectiveness of the address what tangible products, if any,
care delivery through the IHS in forums Medicare, Medicaid and CHIP in Indian are expected from the project, (i.e.
designed to provide training, technical County. The NIHB will conduct legislative analysis, policy analysis,
assistance, and appropriate policy analyses, research and studies to Annual Conference, Summits, etc.)
discussions; address the potential and actual impact (3) Submit a work plan in the
5. To provide periodic dissemination of CMS programs on AI/AN appendix which includes the following
of health care information, including beneficiaries and the health care system information:
publication of a newsletter; and serving these beneficiaries. • Provide the action steps on a
6. To comply with any required (5) CMS—Data analysis, consultation timeline for accomplishing the proposed
reporting requirements that are and dissemination of information to project objective(s).
applicable to American Recovery and Tribes and Tribal organizations. The • Identify who will perform the
Reinvestment Act funding, if awarded. NIHB will complete further analysis of action steps.
Programmatic involvement of the IHS State consultation practices focusing on • Identify who will supervise the
staff: ARRA Section 5006 implementation action steps taken.
1. IHS staff will review articles practices; conduct additional State level • Identify what tangible products will
concerning the Agency for accuracy and trainings with State and Tribal staff on be produced during and the end of the
may, as requested by the NIHB, provide consultation practices employing proposed project objective(s).
relevant articles. coordination through local Health • Identify who will accept and/or
2. IHS staff will have input over the Boards; and conduct focused data approve work products during the
hiring of key personnel as defined by analyses on topics including across duration of the proposed project and at
regulation or provision in the State border access issues and the end of the proposed project.
cooperative agreement. enrollment changes associated with • Include any training that will take
3. IHS will provide technical Children’s Health Insurance Program place during the proposed project and
assistance to the NIHB as requested and Reauthorization Act (CHIPRA) and who will be attending the training.
attend and participate in all the NIHB ARRA legislation. • Include evaluation activities
meetings. (6) CMS—American Recovery and planned.
4. IHS staff may, at the request of the Reinvestment Act (ARRA) Health (4) If consultants or contractors will
NIHB, participate on study groups and Information Technology (HIT). The be used during the proposed project,
may recommend topics for analysis and NIHB will investigate what data please include the following
discussion. management systems Tribes and Tribal information in their scope of work (or
Description of the Project: organizations (T/TOs) use for their HIT note if consultants/contractors will not
(1) IHS Budget Formulation—The services and identify which T/TOs are be used):
NIHB will assist Tribal leaders and Area not using the IHS Resource and Patient • Educational requirements.
Indian Health Boards in convening work Management System (RPMS). The NIHB • Desired qualifications and work
groups for the purpose of consolidating will provide information and training experience.
all twelve regional budget on ‘‘meaningful use’’ of electronic health • Expected work products to be
recommendations and health priorities. records and a report to CMS projecting delivered on a timeline.
NIHB will provide assistance during the ‘‘meaningful use’’ of electronic health • If a potential consultant/contractor
National Tribal Budget work session; records among T/TOs not on the IHS has already been identified, please
will provide packaging and distribution RPMS system. include a resume in the Appendix.
of National Tribal budget priorities to all Continuation awards are subject to the (5) Describe what updates will be
Tribes; and will provide support for the availability of funds and satisfactory required for the continued success of
evaluation of the 2012 budget process performance. the proposed project. Include when
and planning for the 2013 budget To obtain application instructions these updates are anticipated and where
process. please click on the following link and go funds will come from to conduct the
(2) IHS MSPI—The NIHB will provide to the funding opportunities http:// update and/or maintenance.
technical assistance around www.ihs.gov/NonMedicalPrograms/
methamphetamine and suicide gogp/index.cfm?module=gogp_funding. B. Organizational Capabilities and
prevention issues in AI/AN Once you enter the Funding Qualifications (30 Points)
communities. Specifically, NIHB will Opportunity section of the Grants Policy (1) Describe the organizational
use funds to: (a) Serve as technical Website, click on the NIHB–2010– structure of the organization beyond
experts in national AI/AN Supplemental Awards to access the health care activities, if applicable.
(2) Describe the ability of the • What data will be collected to Control and Prevention (CDC)
organization to manage the proposed determine whether the objective was announces the aforementioned meeting:
project. Include information regarding met. Time and Date: 12 p.m.–3 p.m., June 24,
similarly sized projects in scope and • At what intervals will data be 2010 (Closed).
financial assistance as well as other collected. Place: Teleconference.
cooperative agreement/grants and • Who will collect the data and their Status: The meeting will be closed to the
projects successfully completed. qualifications. public in accordance with provisions set
(3) Describe what equipment (i.e., fax • How the data will be analyzed. forth in Section 552b(c)(4) and (6), Title 5
machine, phone, computer, etc.) and • How the results will be used. U.S.C., and the Determination of the Director,
(2) For process evaluation, describe: Management Analysis and Services Office,
facility space (i.e., office space) will be
• How the project will be monitored CDC, pursuant to Public Law 92–463.
available for use during the proposed Matters to be Discussed: The meeting will
project. Include information about any and assessed for potential problems and include the initial review, discussion, and
equipment not currently available that needed quality improvements. evaluation of applications received in
will be purchased through the • Who will be responsible for response to ‘‘Conducting Public Health
cooperative agreement/grant. monitoring and managing project Research in Kenya (Panel B),’’ FOA GH10–
(4) List key personnel who will work improvements based on results of 003.
on the project. Include title used in the ongoing process improvements and Contact Person for More Information:
work-plan. In the appendix, include their qualifications. Sheree Marshall Williams, PhD, Scientific
• How ongoing monitoring will be Review Administrator, CDC, 1600 Clifton
position descriptions and resumes for
used to improve the project. Road, NE., Mailstop D73, Atlanta, GA 30333,
all key personnel. Position descriptions Telephone: (404) 639–7742.
should clearly describe each position • Any products, such as manuals or The Director, Management Analysis and
and duties, indicating desired policies, that might be developed and Services Office, has been delegated the
qualifications and experience how they might lend themselves to authority to sign Federal Register notices
requirements related to the proposed replication by others. pertaining to announcements of meetings and
project. Resumes must indicate that the • How the project will document other committee management activities, for
proposed staff member is qualified to what is learned throughout the project both CDC and the Agency for Toxic
period. Substances and Disease Registry.
carry out the proposed project activities.
If a position is to be filled, indicate that (3) Describe any evaluation efforts Dated: May 25, 2010.
information on the proposed position that are planned to occur after the grant Elaine L. Baker,
description. period ends. Director, Management Analysis and Services
(5) Address the extent to which the (4) Describe the ultimate benefit for Office, Centers for Disease Control and
proposed project will build the the AI/AN that will be derived from this Prevention.
organization’s capacity to provide, project. [FR Doc. 2010–13169 Filed 6–1–10; 8:45 am]
improve, or expand services that Agency Contact(s): BILLING CODE 4163–18–P
address the need(s) of the target For program-related information,
population. contact Ronald Demaray, Acting
Director, IHS Office of Direct Service DEPARTMENT OF HEALTH AND
C. Categorical Budget and Budget and Contracting Tribes, phone number HUMAN SERVICES
Justification (15 Points) 301–443–1104 or by e-mail at
(1) Provide a categorical budget for ronald.demaray@ihs.gov. Food and Drug Administration
each supplement based on the project For grants-related information,
[Docket No. FDA–2007–F–0330] (formerly
period identified. contact Kimberly M. Pendleton, Grants Docket No. 2007F–0454)
(2) If indirect costs are claimed, Management Officer, Division of Grants
indicate and apply the current Operations, 301–443–5204 or by e-mail General Mills, Inc.; Withdrawal of Food
negotiated rate to the budget. Include a at kimberly.pendleton@ihs.gov. Additive Petition
copy of the rate agreement in the Dated: May 26, 2010.
appendix. AGENCY: Food and Drug Administration,
Randy Grinnell, HHS.
(3) Provide a narrative justification
Deputy Director, Indian Health Service. ACTION: Notice.
explaining why each line item is
[FR Doc. 2010–13148 Filed 6–1–10; 8:45 am]
necessary/relevant to the proposed
BILLING CODE 4165–16–P SUMMARY: The Food and Drug
project. Include sufficient cost and other
Administration (FDA) is announcing the
details to facilitate the determination of
withdrawal, without prejudice to a
cost allowability (i.e., equipment
DEPARTMENT OF HEALTH AND future filing, of a food additive petition
specifications, etc.).
HUMAN SERVICES (FAP 7M4770) proposing that the food
D. Project Evaluation (15 Points) additive regulations be amended to
Centers for Disease Control and provide for the safe use of ultraviolet
Each proposed objective requires an
Prevention radiation for the reduction of pathogens
evaluation component to assess its
progression and ensure its completion. and other microorganisms in aqueous
Disease, Disability, and Injury sugar solutions and potable water
Also, include the evaluation activities in Prevention and Control Special
the work-plan. Describe the proposed intended for use in food production.
Emphasis Panel (SEP): Conducting
plan to evaluate both outcomes and FOR FURTHER INFORMATION CONTACT:
Public Health Research in Kenya
process. Outcome evaluation relates to Laura A. Dye, Center for Food Safety
(Panel B), Funding Opportunity
the results identified in the objectives, and Applied Nutrition (HFS–265), Food
Announcement (FOA) GH10–003, Initial
and process evaluation relates to the and Drug Administration, 5100 Paint
Review
work-plan and activities of the project. Branch Pkwy., College Park, MD 20740–
(1) For outcome evaluation, describe: In accordance with Section 10(a)(2) of 3835, 301–436–1275.
• What the criteria will be for the Federal Advisory Committee Act SUPPLEMENTARY INFORMATION: In a notice
determining success of each objective. (Pub. L. 92–463), the Centers for Disease published in the Federal Register of
December 3, 2007 (72 FR 67943), FDA DC 20593. As there are a limited Information on Services for Individuals
announced that a food additive petition number of teleconference lines, public With Disabilities
(FAP 7M4770) had been filed by participation will be on a first come For information on facilities or
General Mills, Inc., One General Mills basis. Written comments should be sent services for individuals with disabilities
Blvd., Minneapolis, MN 55426. The to Commander P.W. Clark, Designated or to request special assistance at the
petition proposed to amend the food Federal Officer of NOSAC, Commandant meeting, contact Mr. Kevin Pekarek at
additive regulations in § 179.39 (CG–5222), 2100 Second Street, SW., 202–372–1386 as soon as possible.
Ultraviolet radiation for the processing Stop 7126, Washington, DC 20593–
and treatment of food (21 CFR 170.39) 0001; or by fax to 202–372 1926, at least Dated: May 25, 2010.
to provide for the safe use of ultraviolet 10 days prior to the meeting. This notice F.J. Sturm,
radiation for the reduction of pathogens is available in our online docket, USCG– Acting Director of Commercial Regulations
and other microorganisms in aqueous 2010–0453, at http:// and Standards.
sugar solutions and potable water www.regulations.gov. [FR Doc. 2010–13117 Filed 6–1–10; 8:45 am]
intended for use in food production. FOR FURTHER INFORMATION CONTACT:
General Mills, Inc., has now withdrawn Commander P.W. Clark, Designated
the petition without prejudice to a Federal Officer of NOSAC, or Mr. Kevin
future filing (21 CFR 171.7). Pekarek, Assistant Designated Federal DEPARTMENT OF HOUSING AND
Dated: May 26, 2010. Officer, telephone 202–372–1386, fax URBAN DEVELOPMENT
Mitchell A. Cheeseman, 202–372–1926. [Docket No. FR–5376–N–46]
Acting Director, Office of Food Additive SUPPLEMENTARY INFORMATION: Notice of
Safety, Center for Food Safety and Applied this meeting is given under the Federal Request Voucher for Grant Payment
Nutrition. Advisory Committee Act, 5 U.S.C. App. and Line of Credit Control System
[FR Doc. 2010–13131 Filed 6–1–10; 8:45 am] 2. (LOCCS) Voice Response System
BILLING CODE 4160–01–S Access Authorization
Agenda of Meeting
AGENCY: Office of the Chief Information
The agenda for the July 1, 2010 Officer, HUD.
DEPARTMENT OF HOMELAND Committee meeting is as follows: ACTION: Notice.
SECURITY (1) Roll call of Committee members
and the public participating in the SUMMARY: The proposed information
Coast Guard teleconference. collection requirement described below
[USCG–2010–0453] (2) Approval of minutes from the has been submitted to the Office of
April 8, 2010, meeting. Management and Budget (OMB) for
National Offshore Safety Advisory (3) Consideration and possible action review, as required by the Paperwork
Committee on a subcommittee’s Final Report Reduction Act. The Department is
containing recommendations soliciting public comments on the
AGENCY: Coast Guard, DHS. concerning Dynamic Positioning (DP) subject proposal.
ACTION:Notice of open teleconference Systems. Payment request vouchers for
meeting. (4) Consideration and possible action distribution of grant funds using the
on a proposed Task Statement and automated Voice Response System
SUMMARY: This notice announces a
formation of a subcommittee to study (VRS). An authorization form is
teleconference meeting of the National
the matter of Electrical Hazards in submitted to establish access to the
Offshore Safety Advisory Committee
Explosive Atmospheres. voice activated payment system.
(NOSAC) to discuss items listed in the
(5) An update on safe lifting DATES: Comments Due Date: July 2,
agenda as well as other items that
initiatives. 2010.
NOSAC may consider. This meeting
(6) Period for Public Comment.
will be open to the public. ADDRESSES: Interested persons are
(7) Confirmation of the date/time for
DATES: The teleconference meeting will invited to submit comments regarding
the next NOSAC Meeting (Tuesday,
take place on Thursday, July 1, 2010, this proposal. Comments should refer to
November 9, 2010 in Houston, TX).
from 11 a.m. to 1:30 p.m. EST. This the proposal by name and/or OMB
meeting may close early if all business Procedural approval Number (2535–0102) and
is finished. Written material and This meeting is open to the public. should be sent to: HUD Desk Officer,
requests to make oral presentations Please note that the meeting may close Office of Management and Budget, New
should reach the Coast Guard on or early if all business is finished. At the Executive Office Building, Washington,
before June 17, 2010. Requests to have Chair’s discretion, members of the DC 20503; fax: 202–395–5806.
a copy of your material distributed to public may make oral presentations FOR FURTHER INFORMATION CONTACT:
each member of the committee should during the meeting. If you would like to Leroy McKinney, Jr., Reports
reach the Coast Guard on or before June make an oral presentation during the Management Officer, QDAM,
17, 2010. teleconference, please notify the DFO no Department of Housing and Urban
ADDRESSES: The Committee will meet, later than June 17, 2010. Written Development, 451 Seventh Street, SW.,
via telephone conference, on July 1, material for distribution to Committee Washington, DC 20410; e-mail Leroy
2010. Public participation is welcome members should reach the Coast Guard McKinney, Jr., at Leroy.McKinneyJr@
and members of the public wishing to no later than June 17, 2010. hud.gov or telephone (202) 402–5564.
participate may contact Commander This is not a toll-free number. Copies of
P.W. Clark at 202–372–1410 for call-in Minutes available documents submitted to OMB
information, or they may participate in Minutes from the meeting will be may be obtained from Mr. McKinney.
person by coming to Room 5–1224, U.S. available for the public review and SUPPLEMENTARY INFORMATION: This
Coast Guard Headquarters Building, copying 30 days following the notice informs the public that the
2100 Second Street, SW., Washington, teleconference meeting. Department of Housing and Urban
Development has submitted to OMB a utility, and clarity of the information to Control System (LOCCS) Voice
request for approval of the Information be collected; and (4) minimize the Response System Access Authorization.
collection described below. This notice burden of the collection of information OMB Approval Number: 2535–0102
is soliciting comments from members of on those who are to respond; including Form Numbers: HUD–27053, HUD–
the public and affecting agencies through the use of appropriate 27054
concerning the proposed collection of automated collection techniques or Description of the Need for the
information to: (1) Evaluate whether the other forms of information technology, Information and Its Proposed Use:
proposed collection of information is e.g., permitting electronic submission of Payment request vouchers for
necessary for the proper performance of responses. distribution of grant funds using the
the functions of the agency, including automated Voice Response System
whether the information will have This Notice Also Lists the Following (VRS). An authorization form is
practical utility; (2) evaluate the Information submitted to establish access to the
accuracy of the agency’s estimate of the voice activated payment system.
burden of the proposed collection of Title of Proposal: Request Voucher for Frequency of Submission: On
information; (3) enhance the quality, Grant Payment and Line of Credit occasion.
Number of Annual Hours per

× = Burden hours
respondents responses response
Reporting burden .............................................................................. 2,420 116 0.170 47,722
Total Estimated Burden Hours: Development, 451 7th Street, SW., OMB Control Number, if applicable:
47,722. Washington, DC 20410; e-mail 2502–0108.
Status: Extension of a currently Leroy.McKinneyJr@HUD.gov or Description of the need for the
approved collection. telephone (202) 402–8048 or the number information and proposed use: This
Authority: Section 3507 of the Paperwork for the Federal Information Relay information is necessary for HUD to
Reduction Act of 1995, 44 U.S.C. 35, as Service (1–800–877–8339). monitor compliance with contractual
amended. FOR FURTHER INFORMATION CONTACT: agreements and to analyze cash flow
Harry Messner, Office of Asset trends as well as occupancy and rent
Dated: May 25, 2010,
Management, Policy and Participation collection levels.
Leroy McKinney, Jr., Agency form numbers, if applicable:
Departmental Reports Management Officer, Standards Division, Department of
Housing and Urban Development, 451 Forms HUD–93479; HUD–93480; HUD–
Office of the Chief Information Officer. 93481.
7th Street, SW., Washington, DC 20410;
[FR Doc. 2010–13112 Filed 6–1–10; 8:45 am] Estimation of the total numbers of
telephone (202) 402–2626 (this is not a
BILLING CODE 4210–67–P hours needed to prepare the information
toll free number) for copies of the
collection including number of
proposed forms and other available
respondents, frequency of response, and
DEPARTMENT OF HOUSING AND information.
hours of response: The number of
URBAN DEVELOPMENT SUPPLEMENTARY INFORMATION: The burden hours is 143,766. The number of
[Docket No. FR–5380–N–24] Department is submitting the proposed respondents is 10,269, the number of
information collection to OMB for responses is 123,228, the frequency of
Notice of Proposed Information review, as required by the Paperwork response is monthly, and the burden
Collection: Comment Request; Reduction Act of 1995 (44 U.S.C. hour per response is 3.5 hours.
Multifamily Project Monthly Chapter 35, as amended). Status of the proposed information
Accounting Reports This Notice is soliciting comments collection: This is an extension of a
from members of the public and affected currently approved collection.
AGENCY: Office of the Assistant agencies concerning the proposed
Secretary for Housing, HUD. Authority: The Paperwork Reduction Act
collection of information to: (1) Evaluate of 1995, 44 U.S.C., Chapter 35, as amended.
ACTION: Notice. whether the proposed collection is
necessary for the proper performance of
SUMMARY: The proposed information the functions of the agency, including Ronald Y. Spraker,
collection requirement described below whether the information will have Associate General Deputy Assistant Secretary
will be submitted to the Office of practical utility; (2) Evaluate the for Housing.
Management and Budget (OMB) for accuracy of the agency’s estimate of the [FR Doc. 2010–13256 Filed 6–1–10; 8:45 am]
review, as required by the Paperwork burden of the proposed collection of BILLING CODE 4210–67–P
Reduction Act. The Department is information; (3) Enhance the quality,
soliciting public comments on the utility, and clarity of the information to
subject proposal. be collected; and (4) Minimize the DEPARTMENT OF HOUSING AND
DATES: Comments Due Date: August 2, burden of the collection of information URBAN DEVELOPMENT
2010. on those who are to respond; including [Docket No. FR–5376–N–45]
ADDRESSES: Interested persons are the use of appropriate automated
invited to submit comments regarding collection techniques or other forms of Monthly Report of Excess Income and
this proposal. Comments should refer to information technology, e.g., permitting Annual Report of Uses of Excess
the proposal by name and/or OMB electronic submission of responses. Income (Correction)
Control Number and should be sent to: This Notice also lists the following AGENCY: Office of the Chief Information
Leroy McKinney, Jr., Departmental information: Officer, HUD.
Reports Management Officer, QDAM, Title of Proposal: Multifamily Project
ACTION: Correction.
Department of Housing and Urban Monthly Accounting Reports.
SUMMARY: The proposed information Executive Office Building, Washington, burden of the collection of information
collection requirement described below DC 20503; fax: 202–395–5806. on those who are to respond; including
has been submitted to the Office of FOR FURTHER INFORMATION CONTACT: through the use of appropriate
Management and Budget (OMB) for Leroy McKinney, Jr., Reports automated collection techniques or
review, as required by the Paperwork Management Officer, QDAM, other forms of information technology,
Reduction Act. The Department is Department of Housing and Urban e.g., permitting electronic submission of
soliciting public comments on the Development, 451 Seventh Street, SW., responses.
subject proposal. Washington, DC 20410; e-mail Leroy This notice also lists the following
Project owners are permitted to retain McKinney, Jr., at information:
Excess Income for projects under terms Leroy.McKinneyJr@hud.gov or telephone Title of Proposal: Monthly Report of
and conditions established by HUD. (202) 402–5564. This is not a toll-free Excess Income and Annual Report of
Owners must request to retain some or number. Copies of available documents Uses of Excess Income.
all of their Excess Income. The request submitted to OMB may be obtained OMB Approval Number: 2502–0086.
must be submitted at least 90 days from Mr. McKinney. Form Numbers: None—form HUD–
before the beginning of each fiscal year, SUPPLEMENTARY INFORMATION: This 93104 has been retired.
or 90 days before any other time during notice informs the public that the Description of the Need for the
a fiscal year that the owner plans to Department of Housing and Urban Information and its Proposed Use:
begin retaining excess income for that Development has submitted to OMB a Project owners are permitted to retain
fiscal year. HUD uses the information to request for approval of the Information Excess Income for projects under terms
ensure that required excess rents are collection described below. This notice and conditions established by HUD.
remitted to the Department and/or is soliciting comments from members of Owners must submit a written request
retained by the owner. This collection the public and affecting agencies to retain some or all of their Excess
was corrected to reflect the submission concerning the proposed collection of Income. The request must be submitted
process. information to: (1) Evaluate whether the at least 90 days before the beginning of
proposed collection of information is each fiscal year, or 90 days before any
DATES: Comments Due Date: July 2,
necessary for the proper performance of other time during a fiscal year that the
2010.
the functions of the agency, including owner plans to begin retaining excess
ADDRESSES: Interested persons are whether the information will have income for that fiscal year. HUD uses
invited to submit comments regarding practical utility; (2) evaluate the the information to ensure that required
this proposal. Comments should refer to accuracy of the agency’s estimate of the excess rents are remitted to the
the proposal by name and/or OMB burden of the proposed collection of Department and/or retained by the
approval Number (2502–0086) and information; (3) enhance the quality, owner.
should be sent to: HUD Desk Officer, utility, and clarity of the information to Frequency of Submission: Monthly,
Office of Management and Budget, New be collected; and (4) minimize the Annually.
Number of Annual Hours per

× = Burden hours
respondents responses response
Reporting burden .............................................................................. 2,506 8.049 0.272 5,493
Total Estimated Burden Hours: 5,493. SUMMARY: This Notice identifies buildings and real property controlled
Status: Extension of a currently unutilized, underutilized, excess, and by such agencies or by GSA regarding
approved collection. surplus Federal property reviewed by its inventory of excess or surplus
HUD for suitability for possible use to Federal property. This Notice is also
Authority: Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C. 35, as assist the homeless. published in order to comply with the
amended. FOR FURTHER INFORMATION CONTACT: December 12, 1988 Court Order in
Kathy Ezzell, Department of Housing National Coalition for the Homeless v.
and Urban Development, 451 Seventh Veterans Administration, No. 88–2503–
Leroy McKinney, Jr., OG (D.D.C.).
Street, SW., Room 7266, Washington,
Departmental Reports Management Officer,
DC 20410; telephone (202) 708–1234; Properties reviewed are listed in this
Office of the Chief Information Officer.
TTY number for the hearing- and Notice according to the following
[FR Doc. 2010–13113 Filed 6–1–10; 8:45 am]
speech-impaired (202) 708–2565 (these categories: Suitable/available, suitable/
telephone numbers are not toll-free), or unavailable, suitable/to be excess, and
call the toll-free Title V information line unsuitable. The properties listed in the
at 800–927–7588. three suitable categories have been
DEPARTMENT OF HOUSING AND
SUPPLEMENTARY INFORMATION: In reviewed by the landholding agencies,
URBAN DEVELOPMENT
accordance with 24 CFR part 581 and and each agency has transmitted to
section 501 of the Stewart B. McKinney HUD: (1) Its intention to make the
[Docket No. FR–5375–N–21] property available for use to assist the
Homeless Assistance Act (42 U.S.C.
11411), as amended, HUD is publishing homeless, (2) its intention to declare the
Federal Property Suitable as Facilities
this Notice to identify Federal buildings property excess to the agency’s needs, or
To Assist the Homeless
and other real property that HUD has (3) a statement of the reasons that the
AGENCY: Office of the Assistant reviewed for suitability for use to assist property cannot be declared excess or
Secretary for Community Planning and the homeless. The properties were made available for use as facilities to
Development, HUD. reviewed using information provided to assist the homeless.
HUD by Federal landholding agencies Properties listed as suitable/available
ACTION: Notice.
regarding unutilized and underutilized will be available exclusively for
homeless use for a period of 60 days 20024; (202) 401–0787; Air Force: Mr. Comments: 11,734 sq. ft.—office/drill hall;
from the date of this Notice. Where Robert Moore, Air Force Real Property 2,519 sq. ft.—maint. shop
property is described as for ‘‘off-site use Agency, 143 Billy Mitchell Blvd., Ste. 1, South Dakota
only’’ recipients of the property will be San Antonio, TX 78226; (210) 395–9512; Camp Crook Bldg. No. 2002
required to relocate the building to their COE: Mr. Scott Whiteford, Army Corps Camp Crook Co: Harding SD 57724
own site at their own expense. of Engineers, Real Estate, CEMP–CR, Landholding Agency: GSA
Homeless assistance providers 441 G Street, NW., Washington, DC Property Number: 54201020007
interested in any such property should 20314; (202) 761–5542; Energy: Mr. Status: Surplus
send a written expression of interest to GSA Number: 7–A–SD–0535–1
Mark Price, Department of Energy, Comments: Off-site removal only, 2395 sq. ft.,
HHS, addressed to Theresa Rita, Office of Engineering & Construction needs repair, and presence of asbestos
Division of Property Management, Management, MA–50, 1000
Program Support Center, HHS, room Independence Ave., SW., Washington, Land
5B–17, 5600 Fishers Lane, Rockville, DC 20585: (202) 586–5422; GSA: Mr. Missouri
MD 20857; (301) 443–2265. (This is not Gordon Creed, General Services Annex No. 3
a toll-free number.) HHS will mail to the Administration, Office of Property Whiteman AFB
interested provider an application Disposal, 18th and F St., NW., Knob Noster MO 65336
packet, which will include instructions Washington, DC 20405; (202) 501–0084; Landholding Agency: Air Force
for completing the application. In order Navy: Mr. Albert Johnson, Department Property Number: 18201020001
to maximize the opportunity to utilize a Status: Underutilized
of the Navy, Asset Management Comments: 9 acres
suitable property, providers should Division, Naval Facilities Engineering
submit their written expressions of Command, Washington Navy Yard, Unsuitable Properties
interest as soon as possible. For 1330 Patterson Ave., SW., Suite 1000, Building
complete details concerning the Washington, DC 20374; (202) 685–9305;
processing of applications, the reader is Alaska
(These are not toll-free numbers).
encouraged to refer to the interim rule Bldg. 100 and 101
Dated: May 27, 2010. Long Range Radar Site
governing this program, 24 CFR part
581. Mark R. Johnston, Point Barrow AK
Deputy Assistant Secretary for Special Needs. Landholding Agency: Air Force
For properties listed as suitable/to be
Property Number: 18201020003
excess, that property may, if TITLE V, FEDERAL SURPLUS PROPERTY Status: Unutilized
subsequently accepted as excess by PROGRAM FEDERAL REGISTER REPORT Reasons: Within 2000 ft. of flammable or
GSA, be made available for use by the FOR 06/04/2010 explosive material Within airport runway
homeless in accordance with applicable clear zone
Suitable/Available Properties
law, subject to screening for other 7 Bldgs.
Federal use. At the appropriate time, Building Eareckson Air Station
HUD will publish the property in a Colorado Eareckson AK 99546
Notice showing it as either suitable/ Landholding Agency: Air Force
7 Bldgs. Property Number: 18201020004
available or suitable/unavailable. U.S. Air Force Academy
For properties listed as suitable/ Status: Unutilized
El Paso CO 80840 Directions: 132, 152, 153, 750, 3013, 3016,
unavailable, the landholding agency has Landholding Agency: Air Force and 4012
decided that the property cannot be Property Number: 18201020002 Reasons: Within airport runway clear zone,
declared excess or made available for Status: Unutilized Secured Area, and Extensive deterioration
use to assist the homeless, and the Directions: 6501, 6502, 6503, 6504, 6505,
6507, and 6508 California
property will not be available.
Properties listed as unsuitable will Comments: 2222 sq. ft. each Bldgs. 591, 970, 1565
not be made available for any other Vandenberg AFB
Iowa
purpose for 20 days from the date of this Vandenberg CA 93437
Former SSA Bldg. Landholding Agency: Air Force
Notice. Homeless assistance providers 3012 Division Street Property Number: 18201020005
interested in a review by HUD of the Burlington IA 52601 Status: Unutilized
determination of unsuitability should Landholding Agency: GSA Reasons: Extensive deterioration
call the toll free information line at 1– Property Number: 54201020005 Secured Area
800–927–7588 for detailed instructions Status: Excess 11 Bldgs.
or write a letter to Mark Johnston at the GSA Number: 7–G–IA–0508 Lawrence Berkeley Nat’l Lab
address listed at the beginning of this Comments: 5060 sq. ft., most recent use— Berkeley Co: Alameda CA 94720
Notice. Included in the request for office Landholding Agency: Energy
review should be the property address Ohio Property Number: 41201020008
(including zip code), the date of Status: Excess
Bldg. MURDOT–23142
Directions: Bldg. Nos. 25, 25A, 25B, 44, 44A,
publication in the Federal Register, the 5153 State Rd
44B, 46C, 46D, 52,52A, and 75A
landholding agency, and the property Dover OH 44622
Reasons: Secured Area
number. Landholding Agency: COE
Property Number: 31201020001 Bldgs. 3550, 3551
For more information regarding Naval Base
particular properties identified in this Status: Unutilized
Comments: 664 sq. ft. office bldg., presence San Diego CA
Notice (i.e., acreage, floor plan, existing Landholding Agency: Navy
of asbestos/lead paint, off-site use only

sanitary facilities, exact street address), Property Number: 77201020015
providers should contact the Belmont Cty Memorial USAR Ctr Status: Unutilized
5305 Guernsey St. Reasons: Secured Area
appropriate landholding agencies at the Bellaire OH 43906
following addresses: Agriculture: Ms. Landholding Agency: GSA Colorado
Brenda Carignan, Department of Property Number: 54201020008 Bldg. 1413
Agriculture, Reporters Building, 300 7th Status: Excess Buckley AFB
Street, SW., Rm. 337, Washington, DC GSA Number: 1–D–OH–837 Aurora CO
Landholding Agency: Air Force Property Number: 18201020012 Landholding Agency: Air Force
Property Number: 18201020006 Status: Excess Property Number: 18201020018
Status: Unutilized Reasons: Within 2000 ft. of flammable or Status: Unutilized
Reasons: Extensive deterioration explosive material Reasons: Secured Area
Secured Area Kansas Texas
Florida 27 Bldgs. Wallisville Road Property
Bldgs. 1622, 60408, and 60537 McConnell AFB Houston TX 77029
Cape Canaveral AFS Sedgwick KS 67210 Landholding Agency: GSA
Brevard FL 32925 Landholding Agency: Air Force Property Number: 54201020006
Landholding Agency: Air Force Property Number: 18201020013 Status: Surplus
Property Number: 18201020007 Status: Excess GSA Number: 7–G–TX–1107
Status: Unutilized Directions: 2052, 2347, 2054, 2056, 2044, Reasons: Within 2000 ft. of flammable or
Reasons: Secured Area 2047, 2049, 2071, 2068, 2065, 2063, 2060, explosive material
13 Bldgs. 2237, 2235, 2232, 2230, 2352, 2349, 2345, Virginia
Tyndall AFB 2326, 2328, 2330, 2339, 2324, 2342, 2354,
Bay FL 32403 and 2333 Bldg. TR–CO1
Landholding Agency: Air Force Reasons: Secured Area Tailrace Park
Property Number: 18201020008 Mecklenberg VA 23917
Louisiana Landholding Agency: COE
Status: Excess
TARS Sites 1–6 Property Number: 31201020006
Directions: B111, B113, B115, B205, B206,
B501, B810, B812, B824, B842, B1027, Morgan City LA 70538 Status: Unutilized
B1257, and B8402 Landholding Agency: Air Force Reasons: Extensive deterioration
Reasons: Within 2000 ft. of flammable or Property Number: 18201020014 West Virginia
explosive material Secured Area Status: Unutilized
Reasons: Secured Area InKeep House
Georgia Smokehole Canyon
Maine Grant WV 26855
Bldgs. 665 and 1219
Moody AFB Bldgs. B496 and 497 Landholding Agency: Agriculture
Moody AFB GA 31699 Bangor Internatl Airport Property Number: 15201020001
Landholding Agency: Air Force Bangor ME 04401 Status: Unutilized
Property Number: 18201020009 Landholding Agency: Air Force Reasons: Extensive deterioration
Status: Underutilized Property Number: 18201020015 Bldg. BLN–01–A–01
Reasons: Secured Area Status: Unutilized Bluestone Lake
Reasons: Secured Area Hinton WV 25951
12 Bldgs.
West Point Lake New Jersey Landholding Agency: COE
West Point GA 31833 5 Bldgs. Property Number: 31201020007
Landholding Agency: COE Joint Base McGuire-Dix-Lakehurst Status: Unutilized
Property Number: 31201020002 Trenton NJ 08641 Reasons: Extensive deterioration
Status: Unutilized Landholding Agency: Air Force Land
Directions: WLC06, LC05, LC06, LC07, RP07, Property Number: 18201020016
Illinois
WEC04, WEC05, WYJ03, WH17, WR01, Status: Unutilized
WGB04, and RP09 Directions: 1827, 1925, 3424, 3446, and 3449 Annex
Reasons: Extensive deterioration Reasons: Extensive deterioration Scolt Radio Relay
Secured Area Belleville IL 62221
Hawaii
Landholding Agency: Air Force
Bldgs. 39 and 14111 North Dakota
Kaena Point Satellite Tracking Station Bldg. ASH 10367 Status: Unutilized
Honolulu HI 96792 Baldhill Dam Reasons: Secured Area
Landholding Agency: Air Force Barnes ND
[FR Doc. 2010–13257 Filed 6–1–10; 8:45 am]
Property Number: 18201020010 Landholding Agency: COE
Status: Excess Property Number: 31201020004 BILLING CODE 4210–67–P
Reasons: Within 2000 ft. of flammable or Status: Unutilized
explosive material Secured Area Reasons: Extensive deterioration
Illinois Oklahoma DEPARTMENT OF THE INTERIOR
Bldgs. 004R43, 003R60 Compound
Carlyle Lake Canton Lake
National Park Service
Clinton IL 62231 Canton OK
Landholding Agency: COE Landholding Agency: COE
Notice of Availability of Draft General
Property Number: 31201020003 Property Number: 31201020005 Management Plan/Environmental
Status: Excess Status: Unutilized Impact Statement for Lincoln Home
Reasons: Extensive deterioration Reasons: Extensive deterioration National Historic Site, Il
Bldg. 621 South Carolina SUMMARY: Pursuant to Section 102(2)(C)
FERMILAB of the National Environmental Policy
7 Bldgs.
Batavia IL
Shaw AFB Act of 1969, 42 U.S.C. 4332(2)(c), the
Landholding Agency: Energy
Sumter SC 29152 National Park Service (NPS) announces
Landholding Agency: Air Force the availability of a draft General
Status: Excess
Property Number: 18201020017 Management Plan/Environmental

Reasons: Extensive deterioration
Status: Unutilized
Secured Area
Directions: B1026, B400, B401, B1402,
Impact Statement (GMP/EIS) for Lincoln
Indiana B1701, B1711, and B1720 Home National Historic Site, Illinois.
Bldg. 18 Reasons: Secured Area DATES: The draft GMP/EIS will remain
Grissom AFB Bldgs. B40006 and B40009 available for public review for 60 days
Peru IN 46970 Shaw AFB following the publishing of the notice of
Landholding Agency: Air Force Wedgefield SC 29168 availability in the Federal Register by
the U.S. Environmental Protection Dated: April 30, 2010. capital improvements (such as boat
Agency. Public meetings will be held Ernest Quintana, launch sites, picnic areas, and
during the 60-day review period on the Regional Director, Midwest Region. interpretive centers) and that are used
GMP/EIS in Springfield, Illinois, in [FR Doc. 2010–13232 Filed 6–1–10; 8:45 am] primarily by the public for recreational
summer 2010. BILLING CODE P purposes. Examples of such locations
You may submit your comments by include developed campgrounds,
any one of several methods. You may designated recreation areas, and special
comment via the Internet through the DEPARTMENT OF THE INTERIOR recreation management areas. The BLM
national planning site at http:// regulates the use and occupancy at such
www.parkplanning.nps.gov/liho. You Bureau of Land Management developed locations in accordance with
may mail comments to Superintendent, [LLMT924000 L12200000.PM0000] 43 CFR 8365.2–3. In addition, site-
Lincoln Home National Historic Site, specific rules for these locations remain
413 South Eighth Street, Springfield, Final Supplementary Rules for in effect and are posted at each site.
Illinois 62701–1905. You may contact Camping on Undeveloped Public These final supplementary rules
the Superintendent by facsimile at 217– Lands in Montana, North Dakota, and supersede rules previously published at
492–4673. Finally, you may hand- South Dakota 72 FR 19958 (April 20, 2007). The rules
deliver comments to the Lincoln Home in the Notice of Camping Limits on
AGENCY: Bureau of Land Management,
National Historic Site headquarters at Public Lands in Montana, South Dakota
Interior. and North Dakota required camps to be
the address above.
ACTION: Final supplementary rules. moved a minimum of 5 miles every 14
ADDRESSES: Copies of the draft GMP/EIS days. These final supplementary rules
are available from the Superintendent, SUMMARY: The Bureau of Land
Management (BLM) is issuing final allow camping at a particular location
413 South Eighth Street, Springfield, for 16 days, either cumulatively or
Illinois 62701–1905. supplementary rules regarding time
limits for camping and the storage of consecutively, during any 30-day
SUPPLEMENTARY INFORMATION: This personal property on undeveloped interval. The placing or leaving of
GMP/EIS will guide the management of public lands managed by the BLM in unattended motor vehicles, trailers, or
the Lincoln Home National Historic Site Montana, North Dakota, and South other personal property for the purpose
for the next 20 years. The draft GMP/EIS Dakota. These final supplementary rules of reserving a camping site is considered
considers four draft conceptual consolidate existing rules for camping camping for the purpose of these final
alternatives—a no-action and three on undeveloped BLM-administered supplementary rules. These changes
action alternatives, including the NPS public lands throughout Montana, North will allow the public to remain in the
preferred alternative. The draft GMP/EIS Dakota, and South Dakota. These final general area in which they wish to
assesses impacts to cultural resources, supplementary rules will supersede recreate while still achieving the BLM’s
visitor opportunities and use, prior published rules. goal of protecting public lands and
socioeconomics, and NPS operations. natural resources by prohibiting long-
DATES: The rules are effective July 2,
The NPS preferred alternative focuses term camps in a single location.
2010.
on rehabilitating the historic landscape ADDRESSES: You may submit II. Discussion of Comments
to offer visitors a strong sense of the suggestions or inquiries to Christina These rules were published as
neighborhood as Lincoln knew it. This Miller, Outdoor Recreation Planner, proposed final supplementary rules on
goal would be accomplished by BLM Montana State Office, 5001 August 13, 2009 in the Federal Register
extensive rehabilitation at the core of Southgate Drive, Billings, MT 59101– (74 FR 40839–40841). Comments were
the site, but less extensive away from 4669. solicited in that publication and could
the core. The Lincoln lot would be
FOR FURTHER INFORMATION CONTACT: be submitted by mail, electronic means,
restored if there is sufficient
Christina Miller, Outdoor Recreation or by telephone.
documentation.
Planner, BLM Montana State Office, No comments were received.
FOR FURTHER INFORMATION CONTACT: 5001 Southgate Drive, Billings, Montana Therefore, we are publishing the final
Contact Superintendent, Lincoln Home 59101–4669, (406) 896–5038. supplementary rules as proposed, with
National Historic Site, at the address or SUPPLEMENTARY INFORMATION:
the exception of editorial changes made
telephone number above. for purposes of clarity.
I. Background
Before including your address, II. Discussion of Comments III. Procedural Matters
telephone number, electronic mail
address, or other personal identifying I. Background Executive Order 12866, Regulatory
information in your comments, you The BLM proposed these final Planning and Review
should be aware that your entire supplementary rules in order to promote These final supplementary rules are
comment (including your personal consistency between the BLM-managed not a significant regulatory action and
identifying information) may be made public lands in Montana, North Dakota, are not subject to review by the Office
publicly available at any time. While and South Dakota on issues of camping, of Management and Budget under
you can ask us in your comments to occupancy, and the storage of property Executive Order (E.O.) 12866. These
withhold your personal identifying on undeveloped public lands. These final supplementary rules will not have
information from public review, we rules are necessary to protect the area’s an effect of $100 million or more on the
cannot guarantee that we will be able to natural resources, to provide for the economy. These final supplementary
do so. We will make all submissions public’s health and safety, and provide rules will not adversely affect, in a
from organizations or businesses, from needed guidance in the areas of material way, the economy,
individuals identifying themselves as camping, occupancy, and storage of productivity, competition, jobs, the
representatives or officials, of personal property. These final environment, public health or safety, or
organizations or businesses, available supplementary rules would not apply to state, local, or tribal governments or
for public inspection in their entirety. locations that contain structures or communities. These final
supplementary rules will not create a Unfunded Mandates Reform Act U.S.C. 3501 et seq.). Any information
serious inconsistency or otherwise These final supplementary rules do collection that may result from Federal
interfere with an action taken or not impose an unfunded mandate on criminal investigations or prosecutions
planned by another agency. These final state, local, or tribal governments, or the conducted in enforcing these final
supplementary rules do not alter the private sector of more than $100 million supplementary rules is exempt from the
budgetary effects of entitlements, grants, per year nor do these final provisions of the Paperwork Reduction
user fees, or loan programs or the right supplementary rules have a significant Act of 1995, 44 U.S.C. 3518(c)(1).
or obligations of their recipients nor do or unique effect on state, local, or tribal Executive Order 13175, Consultation
these final supplementary rules raise governments, or the private sector. and Coordination With Indian Tribal
novel legal or policy issues. They These final supplementary rules do not Governments
establish limits for public recreational require anything of state, local, or tribal
use of undeveloped public lands in governments. Therefore, the BLM is not In accordance with E.O. 13175, the
Montana, North Dakota, and South required to prepare a statement BLM has found that these final
Dakota to protect public lands and containing the information required by supplementary rules do not include
natural resources. the Unfunded Mandates Reform Act (2 policies that have tribal implications.
U.S.C. 1531 et seq.). These final supplementary rules provide
National Environmental Policy Act for enforcement of decisions adopted in
Executive Order 12630, Governmental
Actions and Interference With the record of decision and thoroughly
The BLM prepared an environmental
Constitutionally Protected Property analyzed in the EIS prepared for the
impact statement (EIS) as part of the
Rights (Takings) RMP of each district office. During
development of the resource preparation of the EIS, government-to-
management plan (RMP) for each These final supplementary rules do government consultation was conducted
district office. During that National not represent a government action with the tribal governments with
Environmental Policy Act (NEPA) capable of interfering with interests in the affected area. None of
process, the proposed decisions were constitutionally protected property these tribal governments expressed
fully analyzed, including the substance rights. These final supplementary rules concerns regarding the decisions these
of these final supplementary rules. The do not address property rights in any final supplementary rules are designed
pertinent analysis can be found in form and do not cause the impairment to enforce. Therefore, in accordance
Chapter 4, Environmental of anybody’s property rights. Therefore, with E.O. 13175, the BLM has found
Consequences, of the RMP for each the Department of the Interior has that these final supplementary rules do
district office. These final determined that these final not include polices that have tribal
supplementary rules provide for supplementary rules would not cause a implications.
enforcement of plan decisions. taking of private property or require
further discussion of takings Author
Regulatory Flexibility Act implications under this Executive
Order. The principal author of these final
Congress enacted the Regulatory supplementary rules is Christina Miller,
Flexibility Act (RFA) of 1980, as Executive Order 13132, Federalism Outdoor Recreation Planner, BLM,
amended, 5 U.S.C. 601–612, to ensure These final supplementary rules do Montana State Office. For the reasons
that government regulations do not not have a substantial direct effect on stated in the Preamble, and under the
unnecessarily or disproportionately the states, on the relationship between authority for supplementary rules found
burden small entities. The RFA requires the national government and the states, in 43 U.S.C. 1740, 16 U.S.C. 670h(c)(5),
a regulatory flexibility analysis if a rule or on the distribution of power and 43 U.S.C. 315a, and 43 CFR 8365.1–6,
would have a significant economic responsibilities among the various the Montana/Dakotas State Director,
impact, either detrimental or beneficial, levels of government. These final BLM, proposes the following final
on a substantial number of small supplementary rules will have little or supplementary rules for camping on
entities. These final supplementary no effect on state or local government. public lands within the States of
rules do not pertain specifically to Therefore, in accordance with E.O. Montana, North Dakota, and South
commercial or governmental entities of 13132, the BLM has determined that Dakota:
any size, but to public recreational use these final supplementary rules do not Final Supplementary Rules for
of specific public lands. Therefore, the have sufficient federalism implications Undeveloped BLM-Administered Lands
BLM has determined under the RFA to warrant preparation of a Federalism in the States of Montana, North Dakota,
that these final supplementary rules Assessment. and South Dakota
would not have a significant economic Executive Order 12988, Civil Justice
impact on a substantial number of small Definitions
Reform
entities.
Under E.O. 12988, the BLM has Camping: The erecting of a tent or
Small Business Regulatory Enforcement determined that these final shelter of natural or synthetic material,
Fairness Act supplementary rules would not unduly preparing a sleeping bag or other
burden the judicial system and that they bedding material for use, parking of a
These final supplementary rules do meet the requirements of Sections 3(a) motor vehicle, motor home, or trailer, or
not constitute a ‘‘major rule’’ as defined and 3(b)(2) of the Executive Order. mooring of a vessel for the apparent
at 5 U.S.C. 804(2). Again, these final purpose of overnight occupancy. The

supplementary rules merely establish Paperwork Reduction Act placing or leaving of unattended motor
limits for recreational use of certain These final supplementary rules do vehicles, trailers, or other personal
public lands. These final supplementary not directly provide for any information property for the purpose of reserving a
rules have no effect on business— collection that the Office of camping site is considered camping for
commercial or industrial—use of the Management and Budget must approve the purpose of these final
public lands. under the Paperwork Reduction Act (44 supplementary rules.
Personal Property: Ownership of any Policy and Management Act (FLPMA). Administration (Western), will consider
tangible article. Examples of personal Section 310 of FLPMA (43 U.S.C. 1740) proposals for non-Federal development
property include vehicles, furniture, authorizes the BLM to issue rules and of hydroelectric power at Ridgway Dam,
boats, collectibles, etc. regulations to carry out the purposes of a feature of the Dallas Creek Project.
Refuse: Items or material discarded or FLPMA and other laws applicable to the Reclamation is considering such
rejected as useless or worthless, trash or public lands. Under Section 303(a) of hydroelectric power development under
rubbish. FLPMA, 43 U.S.C. 1733(a) and 43 CFR a lease of power privilege. No Federal
You must follow these rules: 8360.0–7, any person who violates any funds will be available for such
These final supplementary rules of these final supplementary rules on hydroelectric power development.
apply, except as specifically exempted, any public lands may be tried before a Western would have the first
to all camping on undeveloped public United States Magistrate and fined no opportunity to purchase and/or market
lands managed by the Montana State more than $1,000 or imprisoned for no the power that would be generated by
Office of the BLM within the states of more than 12 months, or both. Also, such development under a lease of
Montana, North Dakota, and South such violations may be subject to the power privilege. The Dallas Creek
Dakota. These final supplementary rules enhanced fines provided for by 18 Project is a Federal Reclamation project.
are in effect on a year-round basis and U.S.C. 3571. Under the Taylor Grazing This notice presents background
will remain in effect until modified by Act, any person who violates any of information, proposal content
the BLM. these final supplementary rules on guidelines, and information concerning
1. You must not camp longer than 16 public lands within grazing districts selection of a non-Federal entity to
consecutive days at any one location; (see 43 U.S.C. 315a), or on public lands develop hydroelectric power at Ridgway
2. No person or group may camp subject to a grazing lease (see 43 U.S.C. Dam, and power purchasing and/or
within a single location on public lands 315m), may be tried before a United marketing considerations.
more than 16 days within any period of States Magistrate and fined no more DATES: A written proposal and seven
30 consecutive days. The 16-day limit than $500. Such violations may also be copies must be submitted on or before
may be reached either by compiling subject to the enhanced fines provided 5 p.m. (MST), on Friday, December 3,
individual visits during a 30-day for by 18 U.S.C. 3571. 2010. A proposal will be considered
interval or by occupying a location Any person who violates any of these timely only if it is received in the office
continuously for 16 days during a 30- final supplementary rules on public of the Area Manager by or before 5 p.m.
day interval. A 16-day interval begins lands managed in accordance with the on the designated date. Interested
when a person initially camps or leaves Sikes Act may be tried before a United entities are cautioned that delayed
vehicles or property at a site on public States Magistrate and fined no more delivery to this office due to failures or
lands; than $500 or imprisoned for no more misunderstandings of the entity and/or
3. After 16 days of camping in a single than six months, or both. Such of mail, overnight, or courier services
location, you must not camp at that violations may also be subject to the will not excuse lateness and,
location until at least 30 days have enhanced fines provided for by 18 accordingly, are advised to provide
passed, and any camp relocation within U.S.C. 3571. sufficient time for delivery. Late
that 30-day period shall not be within In accordance with 43 CFR 8365.1–7, proposals will not be considered.
a one-half mile radius from the original state or local officials may also impose
site. Under special circumstances and ADDRESSES: Send written proposals to
penalties for violations of Montana, Ms. Carol DeAngelis, Area Manager,
upon request, the BLM may issue a North Dakota, or South Dakota law.
written permit for extension of the 16- Western Colorado Area Office, Bureau
day limit; Gene R. Terland, of Reclamation, 2764 Compass Drive,
4. You must not leave any personal State Director, Montana State Office. Suite 106, Grand Junction, Colorado
property or refuse after vacating the [FR Doc. 2010–13227 Filed 6–1–10; 8:45 am] 81506, telephone (970) 248–0600.
campsite. This includes any property BILLING CODE 4310–DN–P
A copy of the proposal should also be
left for the purposes of use by another sent at or about the time it is due at
camper or occupant; Reclamation to: CRSP Manager, Western
5. The time such property is left DEPARTMENT OF THE INTERIOR Area Power Administration, 150 Social
unattended at a site will be counted Hall Avenue, Suite 300, Salt Lake City,
toward the 16-day camping limit. Bureau of Reclamation Utah 84111–1534. Western is also
(Unattended property is still subject to available to meet with Reclamation and
Hydroelectric Power Development at interested entities to discuss Western’s
the time limits found in 43 CFR 8365.1–
Ridgway Dam, Dallas Creek Project, potential marketing of hydropower.
2(b)); and
6. The following persons are exempt Colorado FOR FURTHER INFORMATION CONTACT:
from these final supplementary rules: AGENCY: Bureau of Reclamation, Technical data, including past water
any Federal, state, or local officer or Interior. release patterns, may be obtained by
employee in the scope of their duties; ACTION: Notice of intent to accept contacting Mr. Dan Crabtree, Water
members of any organized rescue or proposals, select lessee, and contract for Management Group Chief, Western
firefighting force in performance of an hydroelectric power development at Colorado Area Office, Bureau of
official duty; and any person whose Ridgway Dam. Reclamation 2764 Compass Drive, Suite
activities are authorized in writing by 106, Grand Junction, Colorado 81506,
the BLM. SUMMARY: Current Federal policy telephone (970) 248–0652.
encourages non-Federal development of Reclamation will be available to meet

Penalties environmentally sustainable with interested entities only upon
Penalties under these rules may hydropower potential on Federal water written request to the Water
depend on the location where a resource projects. The Bureau of Management Group Chief at the above
violation occurs. The primary statutory Reclamation (Reclamation), in cited address. Reclamation will provide
authority for proposing these final consultation with the Department of an opportunity for a site visit. In
supplementary rules is the Federal Land Energy, Western Area Power addition, Reclamation reserves the right
to schedule a single meeting and/or visit such existing facilities. The lessee (i.e., as appropriate. The term ‘‘preference
to address the questions of all entities successful proposing entity) would be entity,’’ as applied to a lease of power
that have submitted questions or required to enter into a contract with the privilege, means an entity qualifying for
requested site visits. Information related District to coordinate operation and preference under Section 9c of the 1939
to Western’s purchasing and/or maintenance of any proposed Act as a municipality, public
marketing of the power may be obtained hydropower development with existing corporation or agency, or cooperative or
by contacting Ms. LaVerne Kyriss, CRSP Federal features. other nonprofit organization financed in
Manager, Western Area Power Western would have the first whole or in part by loans made pursuant
Administration, 150 Social Hall opportunity to purchase and/or market to the Rural Electrification Act of 1936,
Avenue, Suite 300, Salt Lake City, Utah the power that would be generated as amended.
84111–1534, telephone (801) 524–6372. under any lease of power privilege. (b) Provide geographical locations and
Information related to the operation and Western would have 60 days from the describe principal structures and other
maintenance of Ridgway Dam may be date of notification of selection of a important features of the proposed
obtained by contacting Mr. Mike Berry, lessee in which to decide whether to development including roads and
Tri-County Water Conservancy District, purchase and/or market the power. transmission lines. Note: Due to
P.O. Box 347, Montrose, Colorado All costs incurred by the United possible forthcoming modifications at
81402, telephone (970) 249–3369. States related to development and Ridgway Dam, the available sites for a
operation and maintenance under a powerhouse are presently limited. It is
SUPPLEMENTARY INFORMATION: The Dallas
lease of power privilege, including therefore imperative that any potential
Creek Project, located near the town of
NEPA compliance, engineering reviews, lessee consult with Reclamation to
Ridgway in west-central Colorado on
and development of the lease of power obtain current information regarding
the Uncompahgre River in the Colorado privilege, would be the expense of the acceptable potential powerhouse
River Basin, was authorized for lessee. In addition, the lessee would be locations. Estimate and describe
construction (including hydropower) by required to make annual payments to installed capacity and the capacity of
the Colorado River Basin Project Act of the United States for the use of a the power facilities under dry, average,
September 30, 1968 (Pub. L. 90–537), as Government facility. Depending on the and wet hydrological conditions. Also
a participating project under the economic capability of the proposed describe seasonal or annual generation
Colorado River Storage Project Act of hydropower development, this amount patterns. Include estimates of the
April 11, 1956 (Pub. L. 84–485). The will be not less than 3 mills per amount of electrical energy that would
Tri-County Water Conservancy District kilowatt-hour of generation. If be produced from the facility for each
(District), under its contracts with the conditions provide opportunity for month of average, dry, and wet water
United States, has certain operation, substantial benefits to accrue to the years. If capacity and energy can be
maintenance, replacement, and lessee, then the United States will delivered to another location, either by
repayment responsibilities and benefit proportionally. Also, under the the proposing entity or by potential
obligations concerning Ridgway Dam. lease of power privilege, provisions will wheeling agents, specify where capacity
Reclamation, in consultation with be included for inflation of the annual and energy can be delivered. Include
Western, is considering hydroelectric payment with time. Such annual concepts for power sales and
power development at Ridgway Dam payments to the United States would be contractual arrangements, involved
under a lease of power privilege. A lease deposited as a credit to the Upper parties, and the proposed approach to
of power privilege is an alternative to Colorado River Basin Fund. wheeling if required. To determine the
Federal hydroelectric power marketability of the generated
development. A lease of power privilege Proposal Content Guidelines
hydropower, Western requires the
is a contractual right given to a non- Interested parties should submit following information: Cost of delivered
Federal entity to use a Reclamation proposals explaining in as precise detail generation in $/megawatt-hour,
facility for electric power generation as is practicable how the hydropower including any variations in cost (on-
consistent with Reclamation project potential would be developed. Factors peak, off-peak, seasonal), including
purposes. Leases of power privilege which a proposal should consider and escalation factors and any other charges;
have terms not to exceed 40 years. The address include, but are not limited to, delivery point and voltage of generation
general authority for lease of power the following: plus any arrangements the lessee has to
privilege under Reclamation law (a) Provide all information relevant to wheel power to an alternate location(s);
includes, among others, the Town Sites the qualifications of the proposing the daily, weekly, monthly, and annual
and Power Development Act of 1906 (43 entity to plan and implement such a pattern of expected generation under
U.S.C. 522), and the Reclamation Project project, including, but not limited to, average, wet, and dry hydrological
Act of 1939 (43 U.S.C. 485h(c)) (1939 information about preference status, conditions; ability of generation to
Act). Reclamation will be the lead type of organization, length of time in provide ancillary services such as
Federal agency for ensuring compliance business, experience in funding, design regulation, spinning reserves, and volt-
with the National Environmental Policy and construction of similar projects, ampere reactive support; and
Act (NEPA) of any lease of power industry rating(s) that indicate financial information on the reliability of the
privilege considered in response to this soundness and/or technical and generation, potential maintenance
notice. Leases of power privilege may be managerial capability, experience of key outage schedule, and duration.
issued only when Reclamation, upon management personnel, history of any (c) Indicate title arrangements and the
completion of the NEPA process, reorganizations or mergers with other ability for acquiring title to or the right
determines that the proposed companies, and any other information to occupy and use lands necessary for
hydropower development is that demonstrates the interested entity’s the proposed development(s), including
environmentally acceptable. Any lease organizational, technical, and financial such additional lands as may be
of power privilege at Ridgway Dam ability to perform all aspects of the required during construction.
must accommodate existing contractual work. Include a discussion of past (d) Identify water rights applicable to
and environmental commitments experience in operating and maintaining the operation of the proposed
related to operation and maintenance of similar facilities and provide references development(s), the holder of such
rights, and how these rights would be Identify proposed methods of financing second to non-preference entities, by
acquired or perfected. the hydropower development. An developing an individual marketing
(e) Discuss any studies necessary to economic analysis should be presented plan for this power. This marketing plan
adequately define impacts on the Dallas that compares the present worth of all would be developed through a separate
Creek Project and the environment of benefits and costs of the hydropower subsequent public process beginning
the development. Describe any development. with a notice in the Federal Register of
significant environmental issues Western’s intent to market the power.
associated with the development and Selection of Lessee
The marketing plan would include all
the proposing entity’s approach for Reclamation, in consultation with aspects of marketing the power,
gathering relevant data and resolving Western, will evaluate proposals including assignment of power to
such issues to protect and enhance the received in response to this published qualified preference and/or non-
quality of the environment. Explain any notice. Reclamation may request preference entities, pricing,
proposed use of the hydropower additional information from individual transmission, and delivery of power.
development for conservation and proposing entities and/or all proposing Western would recover the costs it
utilization of the available water entities after proposals are submitted, would incur in purchasing and/or
resources in the public interest. but prior to making a selection of a marketing the power through the rates
(f) Describe anticipated contractual lessee. charged for the power. Firm power rates
arrangements with the entity or entities Reclamation will give more favorable would be established through a public
having operation and maintenance consideration to proposals that (1) process, initiated by a notice in the
responsibility for the Dallas Creek emphasize sustainable, low impact, or Federal Register, separate from the
Project feature(s) that are proposed for small hydropower development that marketing plan.
utilization in the hydropower avoids, reduces, or minimizes
development under consideration. environmental impacts; (2) improve In the event Western elects to not
Define how the hydropower ecosystem function; (3) utilize water purchase and/or market the power
development would operate in harmony and natural resources in an generated by the hydropower
with the multiple purposes of the Dallas environmentally and economically development or such a decision cannot
Creek Project and existing applicable sound manner; (4) clearly demonstrate be made within 60 days of notification
contracts related to operation and that the offeror is qualified to develop of selection of a lessee, the lessee would
maintenance of Dallas Creek Project the hydropower facility and provide for be responsible for marketing the power
feature(s) being considered for long-term operation and maintenance; generated by the project with priority
modification. and (5) best share the economic benefits given to preference entities as heretofore
(g) Describe plans for assuming of the hydropower development among defined in Proposal Content Guidelines,
liability for damage to the operational parties (including the United States) to item (a).
and structural integrity of the Dallas the lease of power privilege. A proposal Notice and Time Period To Enter Into
Creek Project caused by construction, will be deemed unacceptable if it is Lease of Power Privilege
operation, and/or maintenance of the inconsistent with Dallas Creek Project
hydropower development. purposes, as determined by Reclamation will notify, in writing, all
(h) Identify the organizational Reclamation. Reclamation will give entities submitting proposals of
structure planned for the long-term preference to those entities that qualify Reclamation’s decision regarding
operation and maintenance of any as preference entities, as defined under selection of the potential lessee. The
proposed hydropower development. Proposal Content Guidelines, item (a), selected potential lessee will have two
(i) Provide a management plan to provided that their proposal is at least years from the date of such notification
accomplish such activities as planning, as well-adapted to developing, to enter into a lease of power privilege
NEPA compliance, lease of power conserving, and utilizing the water and for the proposed development of
privilege development, design, natural resources as other submitted hydropower at Ridgway Dam. Any
construction, facility testing, and start of proposals and that the preference entity excessive delay resulting from
hydropower production. Prepare is well qualified. Through written compliance with the provisions of
schedules of these activities as is notice, all preference entities submitting Federal environmental laws or
applicable. Describe what studies are proposals would be allowed 90 days to administrative review by a Federal
necessary to accomplish the improve their proposals, if necessary, to agency, pertaining to the project, may
hydroelectric power development and be made at least equal to a proposal(s) extend the two-year time period for a
how the studies would be implemented. that may have been submitted by a non- period equal to that of the delay. In the
(j) Estimate development cost. This preference entity. event of litigation related to the
cost should include all investment costs proposed project, the two-year time
such as the cost of studies to determine Power Purchasing and/or Marketing
Considerations period will be extended for a period
feasibility, NEPA compliance, design, equal to that of the delay, provided such
construction, and financing as well as Western would have the first litigation was initiated by parties other
the amortized annual cost of the opportunity to purchase and/or market than the selected potential lessee or its
investment; also, the annual operation, the power that would be generated by employees, officers, agents, assigns,
maintenance, and replacement expense the project under a lease of power shareholders, customers, or persons or
for the hydropower development; privilege. Western will consult with groups served by or in privity with the
annual payments to the United States; Reclamation on such power purchasing potential lessee.
expenses that may be associated with and/or marketing considerations.

the Dallas Creek Project; and the Western may market the power Dated: May 13, 2010.
anticipated return on investment. If available from the project as part of its Anamarie Gold,
there are additional transmission or Salt Lake City Area Integrated Projects Assistant Regional Director, Upper Colorado
wheeling expenses associated with the (SLCA/IP) or on a stand-alone basis, first Region.
development of the hydropower to preference entities qualified under [FR Doc. 2010–13149 Filed 6–1–10; 8:45 am]
development, these should be included. criteria established by Western and BILLING CODE 4310–MN–P
DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: John District Advisory Council, c/o Bureau of
Mahoney, U.S. Geological Survey (206– Land Management, External Affairs,
Geological Survey 220–4621). 22835 Calle San Juan de Los Lagos,
SUPPLEMENTARY INFORMATION: Meetings Moreno Valley, California 92553.
Announcement of National Geospatial of the National Geospatial Advisory Written comments also are accepted at
Advisory Committee Meeting Committee are open to the public. the time of the meeting and, if copies
AGENCY: U.S. Geological Survey, Additional information about the NGAC are provided to the recorder, will be
Interior. and the meeting are available at incorporated into the minutes.
http://www.fgdc.gov/ngac. FOR FURTHER INFORMATION CONTACT:
ACTION: Notice of meeting.
Dated: May 27, 2010. David Briery, BLM California Desert
SUMMARY: The National Geospatial Ken Shaffer, District External Affairs, (951) 697–
Advisory Committee (NGAC) will meet Deputy Executive Director, Federal
5220.
on June 22–23, 2010 at the National Geographic Data Committee. Dated: May 26, 2010.
Conservation Training Center, 698 [FR Doc. 2010–13289 Filed 6–1–10; 8:45 am] Teresa A. Raml,
Conservation Way, Shepherdstown, WV BILLING CODE 4311–AM–P District Manager.
25443. The meeting will be held in [FR Doc. 2010–13229 Filed 6–1–10; 8:45 am]
Room #201 Instructional East. BILLING CODE 4310–40–P
The NGAC, which is composed of DEPARTMENT OF THE INTERIOR
representatives from governmental,
private sector, non-profit, and academic Bureau of Land Management
INTERNATIONAL TRADE
organizations, has been established to [LLCAD01000 L12200000.AL 0000] COMMISSION
advise the Chair of the Federal
Geographic Data Committee on Meeting of the California Desert [Inv. No. 337–TA–719]
management of Federal geospatial District Advisory Council
programs, the development of the In the Matter of: Certain Lighting
SUMMARY: Notice is hereby given, in Products; Notice of Investigation
National Spatial Data Infrastructure, and accordance with Public Laws 92–463
the implementation of Office of and 94–579, that the California Desert AGENCY: U.S. International Trade
Management and Budget (OMB) District Advisory Council to the Bureau Commission.
Circular A–16. Topics to be addressed at of Land Management, U.S. Department ACTION: Institution of investigation
the meeting include: of the Interior, will participate in a field pursuant to 19 U.S.C. 1337.
—Recent FGDC Activities. tour of BLM-administered public lands
—Overview of Geospatial Platform on Friday, June 18, 2010, from 8 a.m. to SUMMARY: Notice is hereby given that a
Initiative. 4:30 p.m. and will meet in formal complaint was filed with the U.S.
—NGAC Feedback on Geospatial session on Saturday, June 19, 2010, from International Trade Commission on May
Platform. 8 a.m. to 4:30 p.m. at the Heritage Inn 3, 2010, under section 337 of the Tariff
—NGAC Subcommittee Work Plans. and Suites, 1050 N. Norma St., Act of 1930, as amended, 19 U.S.C.
Ridgecrest, California. 1337, on behalf of Blumberg Industries,
—NGAC Action Plan.
Agenda topics will include updates Inc. d/b/a Fine Art Lamps of Miami
The meeting will include an by Council members and reports from Lakes, Florida. A letter supplementing
opportunity for public comment during the BLM District Manager and five field the complaint was filed on May 24,
the morning of June 23. Comments may office managers. Final agenda items, 2010. The complaint alleges violations
also be submitted to the NGAC in including details of the field tour, will of section 337 based upon the
writing. be posted on the BLM California state importation into the United States, the
Members of the public who wish to Web site at http://www.blm.gov/ca/st/ sale for importation, and the sale within
attend the meeting must register in en/info/rac/dac.html. the United States after importation of
advance for clearance into the meeting SUPPLEMENTARY INFORMATION: All Desert certain lighting products by reason of
site. Please register by contacting Arista District Advisory Council meetings are infringement of U.S. Patent No.
Maher at the Federal Geographic Data open to the public. Public comment for D570,038; U.S. Copyright Registration
Committee (703–648–6283, items not on the agenda will be Nos. VA 1–399–618 and VA 1–415–353;
amaher@fgdc.gov). Registrations are due scheduled at the beginning of the and U.S. Trademark Registration Nos.
by June 14. While the meeting will be meeting Saturday morning. Time for 3,703,710; 3,703,711; 3,700,479, and
open to the public, seating may be public comment may be made available 3,700,480. The complaint further alleges
limited due to room capacity. Members by the Council Chairman during the that an industry in the United States
of the public who cannot attend in presentation of various agenda items, exists as required by subsection (a)(2) of
person may listen to the meeting via and is scheduled at the end of the section 337.
conference call. Please register in meeting for topics not on the agenda. The complainant requests that the
advance for the conference call by While the Saturday meeting is Commission institute an investigation
contacting Arista Maher at the Federal tentatively scheduled from 8 a.m. to and, after the investigation, issue an
Geographic Data Committee (703–648– 4:30 p.m., the meeting could conclude exclusion order and a cease and desist
6283, amaher@fgdc.gov). Conference prior to 4:30 p.m. should the Council order.
call registrations are due by June 14. conclude its presentations and ADDRESSES: The complaint, except for
Instructions will be provided. The discussions. Therefore, members of the any confidential information contained
number of participants may be limited public interested in a particular agenda therein, is available for inspection
by conference line capacity. item or discussion should schedule during official business hours (8:45 a.m.
DATES: The meeting will be held on June their arrival accordingly. Written to 5:15 p.m.) in the Office of the
22 from 8:30 a.m. to 5 p.m. and on June comments may be filed in advance of Secretary, U.S. International Trade
23 from 8:30 a.m. to 4 p.m. the meeting for the California Desert Commission, 500 E Street, SW., Room
112, Washington, DC 20436, telephone industry in the United States exists as Issued: May 26, 2010.
202–205–2000. Hearing impaired required by subsection (a)(2) of section William R. Bishop,
individuals are advised that information 337; and Acting Secretary to the Commission.
on this matter can be obtained by (2) For the purpose of the [FR Doc. 2010–13212 Filed 6–1–10; 8:45 am]
contacting the Commission’s TDD investigation so instituted, the following BILLING CODE P
terminal on 202–205–1810. Persons are hereby named as parties upon which
with mobility impairments who will
this notice of investigation shall be
need special assistance in gaining access INTERNATIONAL TRADE
served:
to the Commission should contact the COMMISSION
Office of the Secretary at 202–205–2000. (a) The complainant is: Blumberg
General information concerning the Industries, Inc. d/b/a Fine Art Lamps, [Investigation Nos. 731–TA–394–A & 399–
Commission may also be obtained by 5770 Miami Lakes Drive East, Miami A (Second Review) (Third Remand)]
accessing its Internet server at http:// Lakes, Florida 33014.
www.usitc.gov. The public record for (b) The respondent is the following Ball Bearings From Japan and the
this investigation may be viewed on the entity alleged to be in violation of United Kingdom
Commission’s electronic docket (EDIS) section 337, and is the party upon AGENCY: United States International
at http://edis.usitc.gov. which the complaint is to be served: Trade Commission.
FOR FURTHER INFORMATION CONTACT: Lights & More, Inc., 170 F.D. Roosevelt ACTION: Notice of remand proceedings.
Anne Goalwin, Esq., Office of Unfair Avenue, San Juan, Puerto Rico 00918.
Import Investigations, U.S. International SUMMARY: The U.S. International Trade
(c) The Commission investigative
Trade Commission, telephone (202) Commission (‘‘Commission’’) hereby
attorney, party to this investigation, is
205–2574. gives notice of its third remand
Authority: The authority for Anne Goalwin, Esq., Office of Unfair
Import Investigations, U.S. International proceedings with respect to its
institution of this investigation is affirmative determinations in the five-
contained in section 337 of the Tariff Trade Commission, 500 E Street, SW.,
Suite 401, Washington, DC 20436; and year reviews of the antidumping orders
Act of 1930, as amended, and in section on ball bearings from Japan and the
210.10 of the Commission’s Rules of (3) For the investigation so instituted, United Kingdom. For further
Practice and Procedure, 19 CFR 210.10 the Honorable Paul J. Luckern, Chief information concerning the conduct of
(2010). Administrative Law Judge, U.S. this proceeding and rules of general
Scope of Investigation: Having International Trade Commission, shall application, consult the Commission’s
considered the complaint, the U.S. designate the presiding Administrative Rules of Practice and Procedure, part
International Trade Commission, on Law Judge. 201, subparts A through E (19 CFR part
May 25, 2010, ordered that— Responses to the complaint and the 201), and part 207, subpart A (19 CFR
(1) Pursuant to subsection (b) of part 207).
notice of investigation must be
section 337 of the Tariff Act of 1930, as DATES: Effective Date: March 27, 2010.
submitted by the named respondent in
amended, an investigation be instituted
accordance with section 210.13 of the FOR FURTHER INFORMATION CONTACT:
to determine:
(a) Whether there is a violation of Commission’s Rules of Practice and James McClure, Office of Investigations,
subsection (a)(1)(B) of section 337 in the Procedure, 19 CFR 210.13. Pursuant to telephone 202–205–3191, or David
importation into the United States, the 19 CFR 201.16(d)-(e) and 210.13(a), such Goldfine, Office of General Counsel,
sale for importation, or the sale within responses will be considered by the telephone 202–708–5452, U.S.
the United States after importation of Commission if received not later than 20 International Trade Commission, 500 E
certain lighting products that infringe days after the date of service by the Street, SW., Washington, DC 20436.
U.S. Patent No. D570,038, and whether Commission of the complaint and the Hearing-impaired persons can obtain
an industry in the United States exists notice of investigation. Extensions of information on this matter by contacting
as required by subsection (a)(2) of time for submitting responses to the the Commission’s TDD terminal on 202–
section 337; complaint and the notice of 205–1810. Persons with mobility
(b) whether there is a violation of investigation will not be granted unless impairments who will need special
subsection (a)(1)(B) of section 337 in the good cause therefor is shown. assistance in gaining access to the
importation into the United States, the Commission should contact the Office
Failure of the respondent to file a of the Secretary at 202–205–2000.
sale for importation, or the sale within timely response to each allegation in the
the United States after importation of General information concerning the
complaint and in this notice may be Commission may also be obtained by
certain lighting products by reason of deemed to constitute a waiver of the
infringement of U.S. Copyright accessing its Internet server (http://
right to appear and contest the www.usitc.gov).
Registration No. VA 1–399–618 or U.S. allegations of the complaint and this
Copyright Registration No. VA 1–415– notice, and to authorize the SUPPLEMENTARY INFORMATION:
353, and whether an industry in the administrative law judge and the Background.—On April 12, 2010, the
United States exists as required by Commission, without further notice to Court of International Trade (per Judge
subsection (a)(2) of section 337; Barzilay) issued an opinion in NSK
the respondent, to find the facts to be as
(c) whether there is a violation of Corp. et al. v. United States, Slip Op.
alleged in the complaint and this notice
subsection (a)(1)(C) of section 337 in the 10–38 (‘‘NSK IV’’), affirming-in-part and
and to enter an initial determination

importation into the United States, the remanding-in-part the Commission’s
and a final determination containing
sale for importation, or the sale within affirmative determination in Certain
the United States after importation of such findings, and may result in the Bearings and Parts Thereof From Japan
certain lighting products by reason of issuance of an exclusion order or a cease and the United Kingdom, Inv. Nos. 731–
infringement of U.S. Trademark and desist order or both directed against TA–394–A & 399–A (Second Review)
Registration Nos. 3,703,710; 3,703,711; the respondent. (Second Remand), USITC Pub. 4131
3,700,479; or 3,700,480, and whether an By order of the Commission. (Jan. 2010).
In NSK IV, the Court affirmed the proceeding. Such persons need not DEPARTMENT OF JUSTICE
Commission’s vulnerability analysis, make any additional filings with the
[OMB Number 1105–0086]
concluding that ‘‘the Commission has Commission to participate in the
provided the rational connection remand proceeding, unless they are Justice Management Division; Office of
missing from its previous adding new individuals to the list of Attorney Recruitment and
determinations, and [therefore] the court persons entitled to receive business Management; Agency Information
sustains the agency’s vulnerability proprietary information under Collection Activities: Proposed
finding.’’ Slip Op. at 10–11. However, administrative protective order. Collection; Comments Requested
the Court remanded the issue of U.K. Business proprietary information (‘‘BPI’’)
cumulation, concluding that the referred to during the remand ACTION: 60–Day Notice of Information
Commission had failed to ‘‘demonstrate proceeding will be governed, as Collection Under Review: Applications
that some incentive likely would draw appropriate, by the administrative for the Attorney Student Loan
a discernible amount of the subject protective order issued in the reviews. Repayment Program.
United Kingdom goods specifically to Written submissions.—The
the United States in the absence of the Commission is not re-opening the The Department of Justice (DOJ),
order.’’ Id. at 18. The Court further record in this remand proceeding. The Justice Management Division, Office of
explained that it ‘‘does not believe that Commission will permit the parties to Attorney Recruitment and Management
the existing record, taken as a whole, file comments pertaining to the specific (OARM), will be submitting the
can support an affirmative discernible issues that are the subject of the Court’s following information collection request
adverse impact finding,’’ and stated that remand instructions. Comments should to the Office of Management and Budget
the ‘‘Commission may reopen the record be limited to no more than fifteen (15) (OMB) for review and approval in
and obtain additional data on this issue double-spaced and single-sided pages of accordance with the Paperwork
in the next remand proceeding, if it so textual material. No appendices or other Reduction Act of 1995. The proposed
chooses.’’ Id. at 16. Finally, on the issues attachments are allowed. The parties information collection is published to
of likely impact and causation, the may not themselves submit any new obtain comments from the public and
Court stated that the Commission’s factual information in their comments affected agencies. Comments are
analysis of the two remaining issues and may not address any issue other encouraged and will be accepted for 60
‘‘nearly resembles the kind of substantial than those that are the subject of the days until August 2, 2010. This process
evidence needed for the court to sustain Court’s remand instructions. Any such is conducted in accordance with 5 CFR
an agency determination.’’ Slip Op. at comments must be filed with the 1320.10.
18. Nevertheless, the Court directed the Commission no later than June 15, 2010. Written comments and/or suggestions
Commission on remand to address the All written submissions must conform regarding the item(s) contained in this
issue of whether ‘‘non-subject imports with the provisions of section 201.8 of notice, especially regarding the
may prevent the subject imports from the Commission’s rules; any estimated public burden and associated
achieving the requisite level of submissions that contain BPI must also response time, should be directed to the
causation and, therefore, serve as an conform with the requirements of Office of Management and Budget,
impenetrable barrier that precludes the sections 201.6, 207.3, and 207.7 of the Office of Information and Regulatory
agency from affirmatively finding injury Commission’s rules. The Commission’s Affairs, Attention: Department of Justice
in this sunset review.’’ Id. at 17. rules do not authorize filing of Desk Officer, Washington, DC, 20530.
Under the remand schedule ordered submissions with the Secretary by Additionally, comments may be
by the court, the Commission was facsimile or electronic means, except to submitted to OMB via facsimile to 202–
required to file by May 12, 2010, a status the extent permitted by section 201.8 of 395–7285. Comments may also be
report advising the Court as to whether the Commission’s rules, as amended, 67 submitted to the Department Clearance
it will reopen the record on the U.K. FR 68036 (Nov. 8, 2002). Officer, United States Department of
cumulation issue. The Court also In accordance with sections 201.16(c) Justice, Suite 1600, 601 D Street, NW.,
directed the parties to file a joint and 207.3 of the Commission’s rules, Washington, DC 20530.
scheduling order by May 12, 2010. each document filed by a party to the Written comments and suggestions
On May 12, 2010, the Commission investigation must be served on all other from the public and affected agencies
filed the requested status report with the parties to the investigation (as identified concerning the proposed collection of
Court, advising the Court that it will not by either the public or BPI service list), information are encouraged. Your
be reopening the record on the issue of and a certificate of service must be comments should address one or more
the discernible adverse impact of the timely filed. The Secretary will not of the following four points:
subject imports from the United accept a document for filing without a (1) Evaluate whether the proposed
Kingdom. On May 12, 2010, the parties certificate of service. collection of information is necessary
also submitted a proposed joint Parties are also advised to consult for the proper performance of the
scheduling order. Under the remand with the Commission’s Rules of Practice functions of the agency, including
schedule ordered by the court, the and Procedure, part 201, subparts A whether the information will have
Commission must file its third remand through E (19 CFR part 201), and part practical utility;
determination by August 25, 2010. The 207, subpart A (19 CFR part 207) for (2) Evaluate the accuracy of the
Court has directed the Plaintiffs, provisions of general applicability agencies estimate of the burden of the
Plaintiff-Intervenors, and Defendant- concerning written submissions to the proposed collection of information,
Intervenors to file their comments on Commission. including the validity of the
the remand by September 29, 2010. methodology and assumptions used;

By order of the Commission.
Participation in the proceeding.— (3) Enhance the quality, utility, and
Only those persons who were interested Issued: May 27, 2010.
clarity of the information to be
parties to the reviews (i.e., persons William R. Bishop, collected; and
listed on the Commission Secretary’s Acting Secretary to the Commission. (4) Minimize the burden of the
service list) and parties to the appeal [FR Doc. 2010–13217 Filed 6–1–10; 8:45 am] collection of information on those who
may participate in the remand BILLING CODE P are to respond, including through the
use of appropriate automated, If additional information is required, proposed collection of information,

electronic, mechanical, or other contact Ms. Lynn Bryant, Department including the validity of the
technological collection techniques or Clearance Officer, United States methodology and assumptions used;
other forms of information technology, Department of Justice, Justice —Enhance the quality, utility, and
e.g., permitting electronic submission of Management Division, Policy and clarity of the information to be
responses. Planning Staff, Suite 1600, 601 D Street, collected; and
NW., Washington, DC 20530. —Minimize the burden of the collection
Overview of This Information
Collection: Dated: May 26, 2010. of information on those who are to
Lynn Bryant, respond, including through the use of
(1) Type of information collection: appropriate automated, electronic,
Department Clearance Officer, PRA,
Proposed New Collection. mechanical, or other technological
U.S. Department of Justice.
(2) The title of the collection: collection techniques or other forms
[FR Doc. 2010–13124 Filed 6–1–10; 8:45 am]
Applications for the Attorney Student of information technology, e.g.,
BILLING CODE 4410–PB–P
Loan Repayment Program. permitting electronic submission of
(3) The agency form number, if any, responses.
and the applicable component of the DEPARTMENT OF JUSTICE
department sponsoring the collection: Overview of This Information
Form Number: none. Office of Attorney [OMB Number 1103–0018] Collection
Recruitment and Management, Justice (1) Type of Information Collection:
Management Division, U.S. Department Justice Management Division; Agency
Information Collection Activities: Extension of a currently approved
of Justice. collection.
(4) Affected public who will be asked Proposed Collection: Common
or required to respond, as well as a brief Request (2) Title of the Form/Collection:
abstract: Primary: Individuals or Department of Justice Procurement
ACTION: 60–Day Notice of Information Blanket Clearance.
households. Other: None. The Collection Under Review: Extension of
Department of Justice Attorney Student (3) Agency form number, if any, and
Previously Approved Collection; the applicable component of the
Loan Repayment Program (ASLRP) is an Department of Justice Procurement
agency recruitment and retention Department of Justice sponsoring the
Blanket Clearance. collection: Procurement Solicitation
incentive program based on 5 U.S.C.
5379, as amended, and 5 CFR part 537. The Department of Justice (DOJ), Documents, Justice Management
The Department selects participants Justice Management Division, will be Division, Department of Justice.
during an annual open season each submitting the following information (4) Affected public who will be asked
spring. Any one currently employed as collection request to the Office of or required to respond, as well as a brief
an attorney or hired to serve in an Management and Budget (OMB) for Abstract. Primary: Commercial
attorney position within the Department review and approval in accordance with organizations and individuals who
may request consideration for the the Paperwork Reduction Act of 1995. voluntarily submit offers and bids to
ASLRP. The Department selects new The proposed information collection is compete for contract awards to provide
attorneys each year for participation on published to obtain comments from the supplies and services required by the
a competitive basis and renews current pubic and affected agencies. Comments Government. All work statements and
beneficiaries who remain qualified for are encouraged and will be accepted for pricing data are required to evaluate the
these benefits, subject to availability of ‘‘sixty days’’ until August 2, 2010. This contractors bid or proposal.
funds. There are two types of process is conducted in accordance with (5) An estimate of the total number of
application forms—one is for new 5 CFR 1320.10. respondents and the amount of time
requests, and the other for renewal If you have comments, especially on estimated for an average respondent to
requests. In addition, there is a three- the estimated public burden or respond: It is estimated that 5,996
year service agreement form, and a one- associated response time, suggestions, respondents will complete each form,
year service extension form. or need a copy of the proposed with a total of 20 hours average
(5) An estimate of the total number of information collection instrument with response time.
respondents and the amount of time instructions or additional information, (6) An estimate of the total public
estimated for an average respondent to please contact Dana Munson, (202) 616– burden (in hours) associated with the
respond/reply: The Department 3759, Management and Planning Staff, collection: There are an estimated
anticipates that on a yearly basis, about Room 1400, National Place Building, 119,920 total annual burden hours
175 respondents will complete the 1331 Pennsylvania Avenue, NW., associated with this collection.
application for a new request. In Washington, DC 20530.
If additional information is required
addition, each year the Department Written comments and suggestions
contact: Ms. Lynn Bryant, Department
expects to receive approximately 300 from the public and affected agencies
Clearance Officer, United States
applications from attorneys and law concerning the proposed collection of
Department of Justice, Justice
clerks requesting renewal of the benefits information are encouraged. Your
Management Division, Policy and
they received in previous years. It is comments should address one or more
Planning Staff, Patrick Henry Building,
estimated that each new application of the following four points:
Suite 1600, 601 D Street, NW.,
will take one (1) hour to complete, and —Evaluate whether the proposed Washington, DC 20530.
each renewal application approximately collection of information is necessary

15 minutes to complete. for the proper performance of the Dated: May 26, 2010.
(6) An estimate of the total public functions of the agency, including Lynn Bryant,
burden (in hours) associated with the whether the information will have Department Clearance Officer, PRA, U.S.
collection: The total estimated annual practical utility; Department of Justice.
public burden associated with this —Evaluate the accuracy of the agencies [FR Doc. 2010–13125 Filed 6–1–10; 8:45 am]
collection is 250 hours. estimate of the burden of the BILLING CODE 4410–FB–P
DEPARTMENT OF JUSTICE mailing a request to Tonia Fleetwood New Jersey 08101, and at U.S. EPA
(tonia.fleetwood@usdoj.gov), fax no. Region II, U.S. Environmental
Notice of Lodging of Consent Decree (202) 514–0097, phone confirmation Protection Agency, 290 Broadway, New
Under the Clean Air Act number (202) 514–1547. In requesting a York, New York 10007. During the
Notice is hereby given that on May 24, copy of the Decree from the Consent public comment period, the Decree may
2010, a proposed Consent Decree in Decree Library, please enclose a check also be examined on the following
United States, and South Coast Air in the amount of $7.75 (25 cents per Department of Justice Web site http://
Quality Management District v. Lifoam page reproduction cost) payable to the www.usdoj.gov/enrd/
Industries, LLC, Civil Action No. 10– U.S. Treasury or, if by E-mail or fax, Consent_Decrees.html. A copy of the
please forward a check in that amount Decree may also be obtained by mail
CV–03825–AHM–FFM was lodged with
to the Consent Decree Library at the from the Consent Decree Library, P.O.
the United States District Court for the
stated address. Box 7611, U.S. Department of Justice,
Central District of California.
The United States, on behalf of the Maureen Katz, Washington, DC 20044–7611 or by
Environmental Protection Agency faxing or e-mailing a request to Tonia
Assistant Chief, Environmental Enforcement
(‘‘EPA’’), and the South Coast Air Section, Environment and Natural Resources Fleetwood (tonia.fleetwood@usdoj.gov),
Quality Management District Division. fax no. (202) 514–0097, phone
(‘‘SCAQMD’’) brought an action against [FR Doc. 2010–13127 Filed 6–1–10; 8:45 am] confirmation number (202) 514–1547. In
Lifoam Industries, LLC, (‘‘Lifoam’’), BILLING CODE 4410–15–P
requesting a copy from the Consent
alleging violations of the Clean Air act Decree Library, please enclose a check
(‘‘ACT’’), 42 U.S.C. 7401 et seq. at in the amount of $23.25 (25 cents per
Lifoam’s expanded polystyrene foam DEPARTMENT OF JUSTICE page reproduction cost) payable to the
(‘‘EPS’’) manufacturing facility located in U.S. Treasury or, if by e-mail or fax,
Vernon, California. The Complaint seeks Notice of Lodging of Consent Decree forward a check in that amount to the
civil penalties for violations of Under the Comprehensive Consent Decree Library at the stated
SCAQMD Rule 1175, which has been Environmental Response, address.
approved into the federally enforceable Compensation, and Liability Act
Maureen Katz,
California State Implementation Plan Notice is hereby given that on May Assistant Chief, Environmental Enforcement
(‘‘SIP’’), as well as for violations of a 25,2010, a proposed Consent Decree Section, Environment and Natural Resources
permit issued by SCAQMD to (‘‘Decree’’) in United States v. Sensient Division.
Defendant. The Complaint also seeks Colors Inc., Civil Action No.07cv1275, [FR Doc. 2010–13128 Filed 6–1–10; 8:45 am]
injunctive relief requiring that Lifoam was lodged with the United States BILLING CODE 4410–15–P
comply with Rule 1175 and the District Court for the District of New
conditions of its permit. Under the Jersey.
terms of the Consent Decree, Lifoam The Decree resolves claims of the DEPARTMENT OF JUSTICE
will pay a civil penalty of $450,000 to United States against Sensient Colors
be divided between the United States Inc. (‘‘Sensient’’) under the Office of Justice Programs
and SCAQMD and will perform Comprehensive Environmental [OJP (BJA) Docket No. 1522]
injunctive relief to ensure that Response, Compensation and Liability
emissions from its facility comply with Act of 1980, 42 U.S.C. 9601–9675, for Meeting of the Public Safety Officer
the ACT and Lifoam’s permit issued recovery of costs incurred by the United Medal of Valor Review Board
under the ACT. The Department of States Environmental Protection Agency
Justice will receive for a period of thirty (‘‘EPA’’) in connection with Sensient’s AGENCY: Office of Justice Programs
(30) days from the date of this ownership and operation of a pigment (OJP), Justice.
publication comments relating to this and dye manufacturing facility known ACTION: Notice of meeting.
Consent Decree. Comments should be as the General Color Site (‘‘Site’’), SUMMARY: This is an announcement of a
addressed to the Assistant Attorney located in Camden, New Jersey. The meeting via conference call of the Public
General, Environment and Natural Decree requires Sensient to pay Safety Officer Medal of Valor Review
Resources Division, and either E-mailed $7,100,000 to the United States in Board to vote on the position of Board
to pubcomment-ees.enrd@usdoj.gov or reimbursement of costs incurred by EPA Chairperson, review issues relevant to
mailed to P.O. Box 7611, U.S. at the Site. the nomination review process, discuss
Department of Justice, Washington, DC The Department of Justice will receive
pending ceremonies and upcoming
20044–7611 and should refer to United for a period of thirty (30) days from the
activities and other relevant Board
States et al. v. Lifoam Industries, LLC, date of this publication comments
issues related thereto. The meeting/
D.J. Ref. #90–5–2–1–08675. relating to the Decree. Comments should
The Consent Decree may be examined conference call date and time is listed
be addressed to the Assistant Attorney
at U.S. EPA Region IX, Office of below.
General, Environmental and Natural
Regional Counsel, 75 Hawthorne Street, Resources Division, and either e-mailed DATES: June 30, 2010, 2 p.m. to 3 p.m.
San Francisco, CA 94105. During the to pubcomment-ees.enrd@usdoj.gov or EDT.
public comment period, the Consent mailed to P.O. Box 7611, U.S. ADDRESSES: This meeting will take place
Decree may also be examined on the Department of Justice, Washington, DC in the form of a conference call.
following Department of Justice Web 20044–7611, and should refer to United FOR FURTHER INFORMATION CONTACT:
site: http://www.usdoj.gov/enrd/ States v. Sensient Colors Inc., Civil Gregory Joy, Policy Advisor, Bureau of
Consent_Decrees.html. A copy of the Action No. 07cv1275 D.N.J.), D.J. Ref. Justice Assistance, Office of Justice
Consent Decree may also be obtained 90–11–3–08690. Programs, 810 7th Street, NW.,
via U.S. mail by sending a request to the The Decree may be examined at the Washington, DC 20531, by telephone at
Consent Decree Library, P.O. Box 7611, Office of the United States Attorney, (202) 514–1369, toll free (866) 859–
U.S. Department of Justice, Washington, District of New Jersey, Camden Office, 2687, or by e-mail at
DC 20044–7611 or by faxing or E- 401 Market Street, 4th Floor, Camden, gregory.joy@usdoj.gov.
SUPPLEMENTARY INFORMATION: The modify his registration, on the ground The next day, the Government moved
Public Safety Officer Medal of Valor that his ‘‘continued registrations is for summary disposition on the ground
Review Board carries out those advisory inconsistent with the public interest.’’ that on September 30, 2009, the State of
functions specified in 42 U.S.C. 15202. Show Cause Order at 1 (citing 21 U.S.C. Hawaii had ‘‘suspended/revoked’’
Pursuant to 42 U.S.C. 15201, the 824(a)(4) & 823(f)). Respondent’s state controlled
President of the United States is The Show Cause Order specifically substances registration and that
authorized to award the Public Safety alleged that on twenty-four different ‘‘Respondent is no longer authorized to
Officer Medal of Valor, the highest occasions between March 2007 and administer, prescribe, dispense or
national award for valor by a public January 2009, Respondent had given possess controlled substances.’’ Gov.
safety officer. prescriptions to law enforcement Mot. for Summ. Disp. at 1. Based on
The purpose of this meeting/ personnel for schedule II controlled long-standing precedent which holds
conference call is vote on the position substances including methadone, that ‘‘possessing authority under state
of Board Chairperson, review issues morphine, oxycodone, and law to handle controlled substance is an
relevant to the nomination review hydromorphone, the schedule III essential condition for holding a DEA
process, pending ceremonies and controlled substance hydrocodone, and registration,’’ the Government requested
upcoming activities and other relevant the schedule IV controlled substances that the ALJ grant its motion, cancel the
Board issues related thereto. alprazolam and diazepam. Id. at 1–2. pending proceeding and forward the
This meeting/conference call is open The Order further alleged that matter to me with the recommendation
to the public at the offices of the Bureau Respondent’s office did not have any that I revoke Respondent’s registration
of Justice Assistance. For security exam rooms and medical equipment; and deny any pending applications. Id.
purposes, members of the public who that he did not take a medical history or at 2–3. Noting that Respondent’s hearing
wish to participate must register at least require the officers to fill out any request was not received until
seven (7) days in advance of the paperwork; did not conduct a physical November 3, 2009, and was therefore
meeting/conference call by contacting examination; and that the officers would untimely, the Government also argued
Mr. Joy. All interested participants will simply write their name, address and that Respondent had waived his right to
be required to meet at the Bureau of the drug they were seeking on a piece a hearing. Id. n.1.
Justice Assistance, Office of Justice of paper which Respondent would take Thereafter, the ALJ ordered that
Programs; 810 7th Street, NW., and then use to prepare a prescription. Respondent file a Response to the
Washington, DC and will be required to Id. at 2. The Order thus alleged that Government’s Motion no later than
sign in at the front desk. Note: Photo these prescriptions lacked a legitimate November 12, 2009. ALJ Dec. at 3. The
identification will be required for medical purpose and were issued in ALJ also stayed the proceeding. Id.
admission. Additional identification Respondent did not, however, file a
violation of 21 CFR 1306.04. Id. The
documents may be required. Response. Id. Thereafter, the ALJ found
Order further alleged that Respondent
Access to the meeting/conference call that ‘‘Respondent’s lacks authority to
was continuing to prescribe controlled
will not be allowed without prior handle controlled substance in the State
substances without a legitimate medical
registration. Anyone requiring special of Hawaii,’’ the State in which he is
purpose. Id.
accommodations should contact Mr. Joy licensed to practice medicine. Id.
Based on the above, I further found Because holding authority under state
at least seven (7) days in advance of the that there was a substantial likelihood law to handle controlled substances is
meeting. Please submit any comments that Respondent ‘‘will continue to write an essential condition for holding a DEA
or written statements for consideration controlled substance prescriptions for registration, the ALJ granted the
by the Review Board in writing at least other than a legitimate medical Government’s Motion for Summary
seven (7) days in advance of the meeting purpose.’’ Id. I therefore concluded that Disposition and recommended that his
date. Respondent’s continued registration registration be revoked and his pending
James H. Burch, II, during the pendency of the proceeding application be denied. Id. at 4–6.
‘‘would constitute an imminent danger The ALJ then forwarded the matter to
Acting Director, Bureau of Justice Assistance.
to the public health and safety’’ and me for final agency action. Having
[FR Doc. 2010–13162 Filed 6–1–10; 8:45 am]
ordered that his registration be considered the record as a whole, I find
immediately suspended. Id.1 that under the Agency’s regulation,
On September 30, 2009, the Order Respondent’s request for a hearing was
was served on Respondent. On untimely and that he has not offered
DEPARTMENT OF JUSTICE
November 3, 2009, Respondent, through good cause for his failure to file a timely
Drug Enforcement Administration his counsel, filed a letter requesting a request. 21 CFR 1301.43(d). I therefore
hearing. ALJ Dec. at 2. Therein, find that Respondent waived his right to
[Docket No. 10–14] Respondent also sought ‘‘a reversal of contest the proceeding. Id. (1301.43(e)).
the proposed suspension.’’ Id. The I further find that on September 4,
Shepard Ginandes, M.D.; Revocation
matter was then placed on the docket of 2009, Respondent applied to renew his
of Registration
the Agency’s Administrative Law registration, which was to expire on
On September 28, 2009, I, the Deputy Judges. September 30, 2009. I therefore find that
Administrator of the Drug Enforcement Respondent’s registration has remained
Administration, issued an Order to 1 The Order also informed Respondent of his right
in effect, albeit in suspended status,
Show Cause and Immediate Suspension to request a hearing on the allegations and the pending the issuance of this Decision
procedure for doing so, including that he must file

of Registration to Shepard Ginandes, a written request for a hearing ‘‘[w]ithin 30 days and Final Order. See 5 U.S.C. 557(c).
M.D. (Respondent), of Honolulu, after the date of receipt of’’ the Order, Show Cause I further find that on September 30,
Hawaii. The Show Cause Order Order at 2, that ‘‘[m]atters are deemed filed upon 2009, the Administrator of the Narcotics
proposed the revocation of receipt by the Hearing Clerk,’’ id. at 3 (citing 21 CFR Enforcement Division, Department of
1316.45), and that should he ‘‘decline to file a
Respondent’s DEA Certificate of request for a hearing’’ he ‘‘shall be deemed to have
Public Safety, State of Hawaii,
Registration, BG0241024, and the denial waived the right to a hearing.’’ Id. (citing 21 CFR ‘‘suspended/revoked’’ Respondent’s
of any pending applications to renew or 1301.43(d) & (e)). State of Hawaii Controlled Substance
Registration. Gov. Mot. for Summ. Disp., Order 0001, by either one of the following
Ex. A (letter from Keith Kamita, Pursuant to the authority vested in me methods:
Administrator, Narcotics Enforcement by 21 U.S.C. 823(f) & 824(a), as well as E-mail: WHDPRAComments@dol.gov;
Division, Hawaii Dept. of Public Safety 28 CFR 0.100(b) & 0.104, I hereby order Mail, Hand Delivery, Courier:
to Shepard Ginandes, M.D.) Based on that DEA Certificate of Registration, Regulatory Analysis Branch, Wage and
Administrator Kamita’s letter, I further BG0241024, issued to Shepard Hour Division, U.S. Department of
find that Respondent is ‘‘no longer Ginandes, M.D., be, and it hereby is, Labor, Room S–3502, 200 Constitution
authorized to administer, prescribe, revoked. I further order that the pending Avenue, NW., Washington, DC 20210.
dispense or posses any controlled Instructions: Please submit one copy
application to renew this registration be,
substance’’ in Hawaii. Id. of your comments by only one method.
and it hereby is, denied. This order is
Under the Controlled Substances Act All submissions received must include
effective immediately.
(CSA), a practitioner must be currently the agency name and Control Number
authorized to handle controlled Dated: February 25, 2010. identified above for this information
substances in ‘‘the jurisdiction in which Michele M. Leonhart, collection. Because we continue to
he practices’’ in order to maintain a DEA Deputy Administrator. experience delays in receiving mail in
registration. See 21 U.S.C. 802(21) [FR Doc. 2010–13144 Filed 6–1–10; 8:45 am] the Washington, DC area, commenters
(‘‘[t]he term ‘practitioner’ means a BILLING CODE 4410–09–P are strongly encouraged to transmit their
physician * * * licensed, registered, or comments electronically via e-mail or to
otherwise permitted, by * * * the submit them by mail early. Comments,
jurisdiction in which he practices * * * DEPARTMENT OF LABOR including any personal information
to distribute, dispense, [or] administer provided, become a matter of public
* * * a controlled substance in the Wage and Hour Division record. They will also be summarized
course of professional practice’’). See and/or included in the request for OMB
also id. § 823(f) (‘‘The Attorney General Proposed Extension of the Approval of approval of the information collection
shall register practitioners * * * if the Information Collection Requirements request.
applicant is authorized to dispense AGENCY: Wage and Hour Division, FOR FURTHER INFORMATION CONTACT:
* * * controlled substances under the Labor. Michel Smyth, Acting Director, Division
laws of the State in which he
ACTION: Notice. of Interpretations and Regulatory
practices.’’). As these provisions make
Analysis, Wage and Hour Division, U.S.
plain, possessing authority under state SUMMARY: The Department of Labor, as Department of Labor, Room S–3502, 200
law to handle controlled substances is part of its continuing effort to reduce Constitution Avenue, NW., Washington,
an essential condition for holding a DEA paperwork and respondent burden, DC 20210; telephone: (202) 693–0406
registration. conducts a preclearance consultation
Accordingly, DEA has held repeatedly (this is not a toll-free number). Copies
program to provide the general public of this notice must be obtained in
that the CSA requires the revocation of and Federal agencies with an
a registration issued to a practitioner alternative formats (Large Print, Braille,
opportunity to comment on proposed Audio Tape or Disc), upon request, by
whose state license has been suspended and/or continuing collections of
or revoked. David Wang, 72 FR 54297, calling (202) 693–0023 (not a toll-free
information in accordance with the number). TTY/TDD callers may dial
54298 (2007); Sheran Arden Yeates, 71 Paperwork Reduction Act of 1995
FR 39130, 39131 (2006); Dominick A. toll-free (877) 889–5627 to obtain
(PRA95). 44 U.S.C. 3506(c)(2)(A). This information or request materials in
Ricci, 58 FR 51104, 51105 (1993); Bobby program helps to ensure that requested
Watts, 53 FR 11919, 11920 (1988). See alternative formats.
data can be provided in the desired
also 21 U.S.C. 824(a)(3)(authorizing the SUPPLEMENTARY INFORMATION:
format, reporting burden (time and I. Background: Fair Labor Standards
revocation of a registration ‘‘upon a financial resources) is minimized,
finding that the registrant * * * has had Act (FLSA) section 11(d) authorizes the
collection instruments are clearly Secretary of Labor to regulate, restrict,
his State license or registration understood, and the impact of collection
suspended [or] revoked * * * and is no or prohibit industrial homework as
requirements on respondents can be necessary to prevent circumvention or
longer authorized by State law to engage properly assessed. Currently, the Wage
in the * * * distribution [or] dispensing evasion of the minimum wage
and Hour Division is soliciting requirements of the Act. 29 U.S.C.
of controlled substances’’). comments concerning its proposal to
The record here establishes that the 211(d). The Department of Labor (DOL)
extend Office of Management and restricts homework in seven industries
Respondent’s State of Hawaii Controlled
Budget (OMB) approval of the (i.e., knitted outerwear, women’s
Substances Registration has been
Information Collection: Special apparel, jewelry manufacturing, gloves
suspended/revoked by the
Employment Under the Fair Labor and mittens, button and buckle
Administrator of the Narcotics
Standards Act (Forms WH–2, WH–46, manufacturing, handkerchief
Enforcement Division, Department of
WH–75, WH–200, WH–201, WH–202, manufacturing, and embroideries) to
Public Safety, State of Hawaii. As the
WH–205, and WH–209). A copy of the those employers who obtain certificates.
Administrator’s letter makes clear,
proposed information collection request See 29 CFR 530.1–.2. The DOL may also
Respondent is ‘‘no longer authorized to
administer, prescribe, dispense or can be obtained by contacting the office issue individual certificates in any
posses any controlled substance’’ under listed below in the FOR FURTHER industry for an individual homeworker
INFORMATION CONTACT section of this
Hawaii law and thus, he no longer who is unable to leave home because of
meets the requirement for obtaining and Notice. a disability or must remain at home to
maintaining a registration under Federal DATES: Written comments must be care for an invalid. See 29 CFR
law. Because Respondent is not entitled submitted to the office listed in the 530.3–.4. The DOL allows employers to
to maintain his DEA registration, his ADDRESSES section below on or before obtain general (employer) certificates to
registration will be revoked and his August 2, 2010. employ homeworkers in all restricted
pending application to renew his ADDRESSES: You may submit comments industries, except women’s apparel and
registration will be denied. identified by Control Number 1235– hazardous jewelry manufacturing
operations. See 29 CFR 530.101. • Enhance the quality, utility and Aluminum Alloy for High Temperature
Consistent with FLSA sections 11(d) clarity of the information to be Applications’’ and Foreign Patent
and 14(c), the Wage and Hour Division collected; and Application Serial No. PCT/US/03/
(WHD) of DOL regulates the • Minimize the burden of the 10372 ‘‘High Strength Aluminum Alloy
employment of industrial homeworkers collection of information on those who for High Temperature Applications’’ to
and workers with disabilities covered by are to respond, including through the Twin City Fan Companies Ltd, having
special certificates and governs the use of appropriate automated, its principal place of business in
application and approval process for electronic, mechanical, or other Minneapolis, MN. The patent rights in
obtaining the certificates. technological collection techniques or this invention have been assigned to the
The FLSA also requires that the other forms of information technology, United States of America as represented
Secretary of Labor, to the extent e.g., permitting electronic submissions by the Administrator of the National
necessary to prevent curtailment of of responses.
Aeronautics and Space Administration.
employment opportunities, provide III. Current Actions: The DOL seeks
The prospective exclusive license will
certificates authorizing the employment approval for the extension of this
information collection in order to comply with the terms and conditions
of full-time students at not less than 85 of 35 U.S.C. 209 and 37 CFR 404.7.
percent of the applicable minimum ensure effective administration of
various special employment programs. NASA has not yet made a determination
wage or less than $1.60, whichever is to grant the requested license and may
higher, in (1) retail or service Type of Review: Extension.
Agency: Wage and Hour Division. deny the requested license even if no
establishments and agriculture (29 objections are submitted within the
U.S.C. 214(b)(1); 29 CFR 519.1(a)); and Title: Special Employment Under the
Fair Labor Standards Act. comment period.
(2) institutions of higher education (29
U.S.C. 214(b)(3); 29 CFR 519.11(a)). The OMB Numbers: 1235–0001, 1235– DATES: The prospective exclusive
FLSA and the regulations set forth the 0019, 1235–0020, 1235–0022. license may be granted unless, within
application requirements as well as the Agency Numbers: Forms WH–2, WH–
fifteen (15) days from the date of this
terms and conditions for the 46, WH–75, WH–200, WH–201, WH–
published notice, NASA receives
employment of full-time students at 202, WH–205, WH–209, WH–226, WH–
226a. written objections including evidence
subminimum wages under certificates and argument that establish that the
Affected Public: Businesses or other
and temporary authorization to employ grant of the license would not be
for-profits and non-profits.
such students at subminimum wages. consistent with the requirements of 35
Respondents: 308,055.
The subminimum wage programs are U.S.C. 209 and 37 CFR 404.7.
Total Annual Responses: 308,055.
designed to increase employment Competing applications completed and
Estimated Total Burden Hours:
opportunities for full-time students. received by NASA within fifteen (15)
614,688.
Regulations issued by the U.S. days of the date of this published notice
Estimated Time per Response: 30 to
Department of Labor (DOL), Bureau of
60 minutes. will also be treated as objections to the
Apprenticeship and Training (BAT) no
Frequency: On occasion. grant of the contemplated exclusive
longer permit the payment of
Total Burden Costs (capital/startup): license.
subminimum wages to apprentices in an
$0. Objections submitted in response to
approved program. 29 CFR 29.5(b)(5).
Total Burden Costs (operation/ this notice will not be made available to
The DOL, thus, has issued no apprentice
maintenance): $1,957.08.
certificates since 1987; however, the the public for inspection and, to the
WHD must maintain the information Dated: May 27, 2010. extent permitted by law, will not be
collection in order for the agency to Michel Smyth, released under the Freedom of
fulfill its statutory obligation under Acting Director, Division of Interpretations Information Act, 5 U.S.C. 552.
FLSA to maintain this program. In order and Regulatory Analysis.
ADDRESSES: Objections relating to the
to improve the management of its [FR Doc. 2010–13282 Filed 6–1–10; 8:45 am]
information collections, the DOL is BILLING CODE 4510–27–P
prospective license may be submitted to
proposing to consolidate the Mr. James J. McGroary, Chief Patent
information collections related to Counsel/LS01, Marshall Space Flight
special employment under the FLSA NATIONAL AERONAUTICS AND Center, Huntsville, AL 35812, (256)
into a single OMB control number, SPACE ADMINISTRATION 544–0013.
1235–0001. A list of the current control FOR FURTHER INFORMATION CONTACT:
numbers appears near the end of this [Notice (10–062)]
Sammy A. Nabors, Technology Transfer
Notice. Notice of Intent To Grant Partially Program Office/ED10, Marshall Space
II. Review Focus: The DOL is Exclusive License Flight Center, Huntsville, AL 35812,
particularly interested in comments (256) 544–5226. Information about other
which: AGENCY: National Aeronautics and
NASA inventions available for licensing
Space Administration.
• Evaluate whether the proposed can be found online at http://
ACTION: Notice of intent to grant
collection of information is necessary technology.nasa.gov.
for the proper performance of the partially exclusive license.
functions of the agency, including SUMMARY: This notice is issued in Richard W. Sherman,
whether the information will have accordance with 35 U.S.C. 209(c)(1) and
practical utility; Deputy General Counsel.
37 CFR 404.7(a)(1)(i). NASA hereby
[FR Doc. 2010–13242 Filed 6–1–10; 8:45 am]
• Evaluate the accuracy of the gives notice of its intent to grant a
agency’s estimate of the burden of the partially exclusive license in the United BILLING CODE 7510–13–P
proposed collection of information, States to practice the inventions

including the validity of the described and claimed in U.S. Patent
methodology and assumptions used; No. 6,918,970 ‘‘High Strength
NATIONAL ARCHIVES AND RECORDS matter of public record. In this notice, DATES: The Richard Nixon Presidential
ADMINISTRATION NARA is soliciting comments Library and Museum intends to make
concerning the following information the materials described in this notice
Agency Information Collection collection: available to the public on Thursday,
Activities: Proposed Collection; Title: National Archives and Records July 1, 2010 at the Richard Nixon
Comment Request Administration Class Evaluation Forms. Presidential Library and Museum in
OMB number: 3095–0023. Yorba Linda, CA, beginning at 9 a.m.
AGENCY: National Archives and Records
Agency form number: NA Form 2019. (PDT). In accordance with 36 CFR
Administration (NARA).
Type of review: Regular. 1275.44, any person who believes it
ACTION: Notice. necessary to file a claim of legal right or
Affected public: Individuals or
SUMMARY: NARA is giving public notice households, Business or other for-profit, privilege concerning access to these
that the agency proposes to request an Nonprofit organizations and materials must notify the Archivist of
extension of an approved information institutions, Federal, State, local, or the United States in writing of the
collection used by participants in tribal government agencies. claimed right, privilege, or defense by
training courses and workshops that Estimated number of respondents: July 2, 2010.
NARA conducts. NARA needs the 7,000. ADDRESSES: The Richard Nixon
information to assess customer Estimated time per response: 5 Presidential Library and Museum, a
satisfaction with course content and minutes. division of the National Archives, is
delivery and to ensure that the training Frequency of response: On occasion located at 18001 Yorba Linda Blvd.,
meets the customer’s needs. The public (when respondent takes NARA Yorba Linda, CA. Researchers must have
is invited to comment on the proposed sponsored training classes). a NARA researcher card, which they
information collection pursuant to the Estimated total annual burden hours: may obtain when they arrive at the
Paperwork Reduction Act of 1995. 583 hours. facility. Petitions asserting a legal or
Abstract: The information collection constitutional right or privilege that
DATES: Written comments must be
allows uniform measurement of would prevent or limit public access to
received on or before August 2, 2010 to
customer satisfaction with NARA the materials must be sent to the
be assured of consideration.
training courses and workshops. NARA Archivist of the United States, National
ADDRESSES: Comments should be sent
distributes the approved form to the Archives at College Park, 8601 Adelphi
to: Paperwork Reduction Act Comments Rd., College Park, Maryland 20740–
(NHP), Room 4400, National Archives course coordinators on the intranet for
customization of selected elements, 6001.
and Records Administration, 8601
Adelphi Rd, College Park, MD 20740– shown as shaded areas on the form FOR FURTHER INFORMATION CONTACT:
6001; or faxed to 301–713–7409; or submitted for clearance. Timothy Naftali, Director, Richard
electronically mailed to Dated: May 25, 2010. Nixon Presidential Library and
tamee.fechhelm@nara.gov. Martha Morphy,
Museum, 714–983–9120.
SUPPLEMENTARY INFORMATION: The
FOR FURTHER INFORMATION CONTACT: Assistant Archivist for Information Services.
following materials will be made
Requests for additional information or [FR Doc. 2010–13245 Filed 6–1–10; 8:45 am]
available in accordance with this notice:
copies of the proposed information BILLING CODE 7515–01–P 1. Previously restricted textual
collection and supporting statement materials. Volume: 3 cubic feet. A
should be directed to Tamee Fechhelm number of textual materials previously
at telephone number 301–837–1694, or NATIONAL ARCHIVES AND RECORDS
withheld from public access have been
fax number 301–713–7409. ADMINISTRATION
reviewed for release and/or declassified
SUPPLEMENTARY INFORMATION: Pursuant under the systematic declassification
Nixon Presidential Historical Materials:
to the Paperwork Reduction Act of 1995 Opening of Materials review provisions and under the
(Pub. L. 104–13), NARA invites the mandatory review provisions of
general public and other Federal AGENCY: National Archives and Records Executive Order 12958, as amended;
agencies to comment on proposed Administration. Executive Order 13526; or in accordance
information collections. The comments ACTION: Notice of opening of additional with 36 CFR 1275.56 (Public Access
and suggestions should address one or materials. regulations). The materials are from
more of the following points: integral file segments for the White
(a) Whether the proposed information SUMMARY: This notice announces the House Special Files, Staff Member and
collection is necessary for the proper opening of additional Nixon Office Files; National Security Council
performance of the functions of NARA; Presidential Historical Materials by the (NSC Files); the Henry A. Kissinger
(b) the accuracy of NARA’s estimate of Richard Nixon Presidential Library and (HAK) Office Files; and the Henry
the burden of the proposed information Museum, a division of the National Kissinger Telephone Conversation
collection; (c) ways to enhance the Archives and Records Administration. Transcripts.
quality, utility, and clarity of the Notice is hereby given that, in 2. White House Central Files, Staff
information to be collected; and accordance with section 104 of Title I of Member and Office Files. Volume: 37.5
(d) ways to minimize the burden of the the Presidential Recordings and cubic feet. The White House Central
collection of information on Materials Preservation Act (PRMPA, 44 Files Unit was a permanent organization
respondents, including the use of U.S.C. 2111 note) and 1275.42(b) of the within the White House complex that
information technology; and (e) whether PRMPA Regulations implementing the maintained a central filing and retrieval
small businesses are affected by this Act (36 CFR part 1275), the Agency has system for the records of the President
collection. The comments that are identified, inventoried, and prepared for and his staff. The Staff Member and
submitted will be summarized and public access additional textual Office Files consist of materials that
included in the NARA request for Office materials and sound recordings from were transferred to the Central Files but
of Management and Budget (OMB) among the Nixon Presidential Historical were not incorporated into the Subject
approval. All comments will become a Materials. Files. The following file group will be
made available: Daniel Patrick and have copied, for a fee, publicly improve the consistency within the
Moynihan. available documents at the NRC’s PDR, document.
3. White House Central Files, Name Room O1 F21, One White Flint North, On August 5, 2009 (74 FR 39117),
Files: Volume: 1 cubic foot. The Name 11555 Rockville Pike, Rockville, NRC announced the availability of draft
Files were used for routine materials Maryland 20852. NUREG–1520, Revision 01 and
filed alphabetically by the name of the NRC’s Agencywide Documents Access requested comments on it. The
correspondent; copies of documents in and Management System (ADAMS): comment period originally closed on
the Name Files were usually filed by Publicly available documents created or September 21, 2009. In a second notice,
subject in the Subject Files. The received at the NRC are available dated August 19, 2009 (74 FR 41946),
following Name Files folders will be electronically at the NRC’s Electronic NRC extended the comment period to
made available: Block, H; Chaplin, A–C; Reading Room at http://www.nrc.gov/ October 24, 2009. The NRC staff
Conrad, P; Copl; Dad; Heller, J.; Kese; reading-rm/adams.html. From this page, considered all of the comments,
Lennon, F–K; Mazo, Earl; Ono; the public can gain entry into ADAMS, including constructive suggestions to
Rockwell, L–P; Simpson, J.; Simpson, which provides text and image files of improve the document, in the
JE; Simpson, Jan; Stau; Thompson, NRC’s public documents. If you do not preparation of the final NUREG report.
Howard; Trud; Wyeth. have access to ADAMS or if there are A matrix listing all the comments with
4. White House Communications problems in accessing the documents staff responses on NUREG–1520 was
Agency Sound Recordings. Volume: located in ADAMS, contact the NRC’s made publicly available in ADAMS
5.25 hours. The White House PDR reference staff at (1–800) 397–4209, (ML092880360). The SRP was also
Communications Agency (WHCA) was a (301) 415–4737, or via e-mail to transmitted to the Office of the General
permanent organization within the pdr.resource@nrc.gov. The Standard Counsel (OGC) to ensure that the
White House Military Office responsible Review Plan (SRP) (NUREG–1520) is updated SRP sections are consistent
for preparing audio, motion picture, available electronically under ADAMS with current rules and authoritative
film, and photographic records of White Accession Number ML1013901100. statements of agency policy. No legal
House events. The WHCA Sound FOR FURTHER INFORMATION CONTACT: objection was identified by OGC.
Recordings record the public utterances Cinthya Román Cuevas, Chemical The final version of NUREG–1520,
of President Nixon as well as selected Engineer, Office of Nuclear Material Revision 1, is now available for use by
speeches and remarks by other members Safety and Safeguards, U.S. Nuclear applicants, licensees, NRC license
of the Nixon Administration. A number Regulatory Commission, Washington, reviewers, and other NRC staff. It
of WHCA Sound Recordings from the DC 20555–0001, or by telephone at (301) supersedes the last official revision
Summer Intern Briefings from (Nixon) 492–3224 or e-mail at published on March 2002.
White House Staff series have been cinthya.roman@nrc.gov. Dated at Rockville, Maryland this 24th day
reviewed for release in accordance with SUPPLEMENTARY INFORMATION: The SRP of May, 2010.
36 CFR 1275.56 (Public Access for the review of a license application For the Nuclear Regulatory Commission.
regulations): for a fuel cycle facility (NUREG–1520), Michael Tschiltz,
Rita Hauser/Pat Hitt/Sallyanne Payton Revision 1, provides NRC staff guidance Deputy Director, Fuel Facility Licensing
(July 31, 1972) for reviewing and evaluating the safety, Directorate, Division of Fuel Cycle Safety and
Earl Mazo (August 6, 1972) health, and environmental protection Safeguards, Office of Nuclear Material Safety
Donald Rumsfeld (August 3, 1971) and Safeguards.
Herbert Stein (August 4, 1972) aspects of applications for licenses to
possess and use of Special Nuclear [FR Doc. 2010–13151 Filed 6–1–10; 8:45 am]
Dated: May 26, 2010. Materials to produce nuclear reactor BILLING CODE 7590–01–P
David Ferriero, fuel. The licensing guidance revision is
Archivist of the United States. also intended to provide information
[FR Doc. 2010–13246 Filed 6–1–10; 8:45 am] needed to better risk-inform the NUCLEAR REGULATORY
BILLING CODE 7515–01–P preoperational readiness reviews. COMMISSION
Specifically, items, features, or aspects
of the design identified during the Advisory Committee on Reactor
licensing review as important, will be Safeguards (ACRS); Meeting of the
NUCLEAR REGULATORY ACRS Subcommittee on AP1000
COMMISSION highlighted to verify compliance with
specific commitments during the The ACRS Subcommittee on AP1000
[NRC–2009–0339] preoperational readiness reviews. will hold a meeting on June 24–25,
The SRP has been updated to improve 2010, Room T–2B1, 11545 Rockville
NUREG–1520, ‘‘Standard Review Plan and enhance the guidance by providing
for the Review of a License Application Pike, Rockville, MD.
increased clarity and definition in The entire meeting will be open to
for a Fuel Cycle Facility’’; Notice of specific areas of the licensing program
Availability public attendance.
and adding additional guidance in areas The agenda for the subject meeting
AGENCY: Nuclear Regulatory where information was lacking or not shall be as follows:
Commission (NRC). suitably addressed. This effort was Thursday, June 24, 2010—8:30 a.m.
ACTION: Notice of availability. focused on improving both the clarity, until 5 p.m. and Friday, June 25, 2010,
and also consistency, of the SRP, with 8:30 a.m.–2:30 p.m.
SUMMARY: NRC is announcing the the Agency positions that support The Subcommittee will review
completion and availability of NUREG– compliance with current regulations. Chapters 4, 10, 11, 12, 14, and 22 of the
1520, Revision 1, ‘‘Standard Review The changes do not involve any new AP1000 Design Control Document
Plan for the Review of a License staff positions rather existing guidance (DCD); Chapters 4, 10, 11, and 12 of the
Application for a Fuel Cycle Facility,’’ has been consolidated to ensure the Vogtle Units 3 and 4 Combined License
dated May 2010. quality and uniformity of staff safety Application (COLA); and the associated
ADDRESSES: NRC’s Public Document reviews. In addition, this revision has staff’s final safety evaluation reports.
Room (PDR): The public may examine been reformatted and reorganized to The Subcommittee will hear
presentations by and hold discussions NUCLEAR REGULATORY disabilities where appropriate. If you
with representatives of the NRC staff, COMMISSION need a reasonable accommodation to
Westinghouse, Southern Nuclear participate in these public meetings, or
[NRC–2010–0002]
Operating Company, and other need this meeting notice or the
interested persons regarding this matter. Sunshine Federal Register Notice transcript or other information from the
The Subcommittee will gather public meetings in another format (e.g.,
information, analyze relevant issues and AGENCY HOLDING THE MEETINGS: Nuclear braille, large print), please notify Angela
facts, and formulate proposed positions Regulatory Commission. Bolduc, Chief, Employee/Labor
and actions, as appropriate, for DATES: Weeks of May 31, June, 7, 14, 21, Relations and Work Life Branch, at 301–
deliberation by the Full Committee. 28, July 5, 2010. 492–2230, TDD: 301–415–2100, or by e-
PLACE: Commissioners’ Conference mail at angela.bolduc@nrc.gov.
Members of the public desiring to Determinations on requests for
provide oral statements and/or written Room, 11555 Rockville Pike, Rockville,
Maryland. reasonable accommodation will be
comments should notify the Designated made on a case-by-case basis.
Federal Official (DFO), Weidong Wang STATUS: Public and closed.
This notice is distributed
(Telephone 301–415–6279 or e-mail Week of May 31, 2010 electronically to subscribers. If you no
Weidong.Wang@nrc.gov) five days prior There are no meetings scheduled for longer wish to receive it, or would like
to the meeting, if possible, so that the week of May 31, 2010. to be added to the distribution, please
appropriate arrangements can be made. contact the Office of the Secretary,
Thirty-five hard copies of each Week of June 7, 2010—Tentative Washington, DC 20555 (301–415–1969),
presentation or handout should be Wednesday, June 9, 2010 or send an e-mail to
provided to the DFO thirty minutes darlene.wright@nrc.gov.
1:30 p.m. Meeting with the Advisory
before the meeting. In addition, one Dated: May 27, 2010.
Committee on Reactor Safeguards
electronic copy of each presentation Rochelle C. Bavol,
(Public Meeting). (Contact:
should be emailed to the DFO one day Cayetano Santos, 301–415–7270). Policy Coordinator, Office of the Secretary.
before the meeting. If an electronic copy [FR Doc. 2010–13317 Filed 5–27–10; 4:15 pm]
This meeting will be Webcast live at
cannot be provided within this
the Web address—http://www.nrc.gov. BILLING CODE 7590–01–P
timeframe, presenters should provide
the DFO with a CD containing each Week of June 14, 2010—Tentative
presentation at least thirty minutes Thursday, June 17, 2010
before the meeting. Electronic PENSION BENEFIT GUARANTY
recordings will be permitted only 9 a.m. Briefing on Blending (Public CORPORATION
during those portions of the meeting Meeting). (Contact: George Deegan,
301–415–7834). Proposed Submission of Information
that are open to the public. Detailed
This meeting will be Webcast live at Collection for OMB Review; Comment
procedures for the conduct of and
the Web address—http://www.nrc.gov. Request; Locating and Paying
participation in ACRS meetings were Participants
published in the Federal Register on Week of June 21, 2010—Tentative
October 14, 2009, (74 FR 58268–58269). AGENCY: Pension Benefit Guaranty
Friday, June 25, 2010 Corporation.
Detailed meeting agendas and meeting
9 a.m. Briefing on Office of Nuclear ACTION: Notice of Intent to request OMB
transcripts are available on the NRC
Material Safety and Safeguards approval of modifications to
Web site at http://www.nrc.gov/reading- (NMSS)—Programs, Performance
rm/doc-collections/acrs. Information information collection.
and Future Plans and Integrated
regarding topics to be discussed, Strategy on Spent Fuel Management SUMMARY: The Pension Benefit Guaranty
changes to the agenda, whether the (Public Meeting). (Contact: Hipolito Corporation (‘‘PBGC’’) intends to request
meeting has been canceled or Gonzalez, 301–492–3141). that the Office of Management and
rescheduled, and the time allotted to This meeting will be Webcast live at Budget (‘‘OMB’’) approve modifications
present oral statements can be obtained the Web address—http://www.nrc.gov. to a collection of information under the
from the Web site cited above or by Paperwork Reduction Act. The purpose
contacting the identified DFO. Week of June 28, 2010—Tentative of the information collection is to enable
Moreover, in view of the possibility that There are no meetings scheduled for the PBGC to pay benefits to participants
the schedule for ACRS meetings may be the week of June 28, 2010. and beneficiaries. PBGC intends to add
adjusted by the Chairman as necessary three new forms to the information
Week of July 5, 2010
to facilitate the conduct of the meeting, collection and to modify an approved
persons planning to attend should check There are no meetings scheduled for form.
with these references if such the week of July 5, 2010.
*The schedule for Commission DATES: Comments should be submitted
rescheduling would result in a major by August 2, 2010.
inconvenience. meetings is subject to change on short
notice. To verify the status of meetings, ADDRESSES: Comments may be
Dated: May 25, 2010. call (recording)—(301) 415–1292. submitted by any of the following
Cayetano Santos, Contact person for more information: methods:
Chief, Reactor Safety Branch B, Advisory Rochelle Bavol, (301) 415–1651. • Federal eRulemaking Portal: http://
Committee on Reactor Safeguards. The NRC Commission Meeting www.regulations.gov. Follow the Web
[FR Doc. 2010–13152 Filed 6–1–10; 8:45 am] Schedule can be found on the Internet site instructions for submitting
at: http://www.nrc.gov/about-nrc/policy- comments.
making/schedule.html. • E-mail:
The NRC provides reasonable paperwork.comments@pbgc.gov.
accommodation to individuals with • Fax: 202–326–4224.
• Mail or Hand Delivery: Legislative who are receiving benefits based on are to respond, including the use of
and Regulatory Department, Pension disability. The other new form will be appropriate automated, electronic,
Benefit Guaranty Corporation, 1200 K used to determine whether participants mechanical, or other technological
Street, NW., Washington, DC 20005– are eligible for additional pension collection techniques or other forms of
4026. service credit under the Uniformed information technology, e.g., permitting
PBGC will make all comments available Services Employment and electronic submission of responses.
on its Web site at http://www.pbgc.gov. Reemployment Rights Act, which Issued in Washington, DC, this 27th day of
Copies of the collection of establishes specific rights for May, 2010.
information may be obtained without reemployed service members in their John H. Hanley,
charge by writing to the Disclosure employee pension benefit plans. (See
Director, Legislative and Regulatory
Division of the Office of the General PBGC’s final regulation on USERRA Department, Pension Benefit Guaranty
Counsel of PBGC at the above address Benefits under Title IV of ERISA, 74 FR Corporation.
or by visiting that office or calling 202– 59093 (Nov. 17, 2009).) [FR Doc. 2010–13201 Filed 6–1–10; 8:45 am]
326–4040 during normal business PBGC also intends to modify PBGC
hours. (TTY and TDD users may call the Form 704 (Request for Earnings
Federal relay service toll-free at 1–800– Information) to eliminate the need for
877–8339 and ask to be connected to respondents to provide copies of IRS
202–326–4040.) The regulations relating Form W–2 (Wage and Tax Statement) to OFFICE OF PERSONNEL
to this collection of information are confirm their earnings. PBGC expects MANAGEMENT
available on PBGC’s Web site at that the number of respondents that will
http://www.pbgc.gov. use the new or modified forms, and the Proposed Collection; Comment
burden associated with those forms, will Request for Review of a Revised
FOR FURTHER INFORMATION CONTACT: Jo
be very small. Accordingly, PBGC is not Information Collection: (OMB Control
Amato Burns, Attorney, or Catherine B.
changing its burden estimates for this No. 3206–0216; Form RI 98–7)
Klion, Manager, Regulatory and Policy
Division, Legislative and Regulatory information collection as a result of the
AGENCY: Office of Personnel
Department, Pension Benefit Guaranty modifications.
The existing collection of information Management.
Corporation, 1200 K Street, NW., ACTION: Notice.
under the regulation was approved
Washington, DC 20005–4026, 202–326–
under OMB control number 1212–0055
4024. (For TTY and TDD, call 800–877– SUMMARY: In accordance with the
(expires August 31, 2011). PBGC intends
8339 and ask to be connected to 202– Paperwork Reduction Act of 1995 (Pub.
to request that OMB approve the
326–4024.) L. 104–13, May 22, 1995), this notice
modifications through the current
SUPPLEMENTARY INFORMATION: PBGC announces that the Office of Personnel
expiration date. An agency may not
intends to request that OMB approve Management (OPM) intends to submit to
conduct or sponsor, and a person is not
modifications to a collection of the Office of Management and Budget
required to respond to, a collection of
information needed to pay participants (OMB) a request for review of a revised
information unless it displays a
and beneficiaries who may be entitled to information collection. This information
currently valid OMB control number.
pension benefits under a defined benefit PBGC estimates the total annual collection, ‘‘We Need Important
plan that has terminated. The collection burden associated with this collection of Information About Your Eligibility for
consists of information participants and information is 73,300 hours and $3,100. Social Security Disability Benefits’’
beneficiaries are asked to provide in The burden estimate includes 67,050 (OMB Control No. 3206–0216; Form RI
connection with an application for hours for participants in plans covered 98–7), is used by OPM to verify receipt
benefits. In addition, in some instances, by the PBGC insurance program. The of Social Security Administration (SSA)
as part of a search for participants and remaining hourly burden is attributable disability benefits, to lessen or avoid
beneficiaries who may be entitled to to participants that will be covered by overpayment to Federal Employees
benefits, PBGC requests individuals to the expanded Missing Participants Retirement System (FERS) disability
provide identifying information that the program under Pension Protection Act retirees. It notifies the annuitant of the
individual would provide as part of an of 2006 amendments to ERISA, once responsibility to notify OPM if SSA
initial contact with PBGC. All requested final regulations are issued to benefits begin and the overpayment that
information is needed to enable PBGC to implement the program. The cost will occur with the receipt of both
determine benefit entitlements and to burden for both groups of participants is benefits.
make appropriate payments. The estimated to be $3,100. Comments are particularly invited on:
information collection includes My PBGC is soliciting public comments whether this collection of information is
Pension Benefit Account (My PBA), an to— necessary for the proper performance of
application on PBGC’s Web site, • Evaluate whether the collection of functions of the Office of Personnel
http://www.pbgc.gov, through which information is necessary for the proper Management, and whether it will have
plan participants and beneficiaries may performance of the functions of the practical utility; whether our estimate of
conduct electronic transactions with agency, including whether the the public burden of this collection of
PBGC, including applying for pension information will have practical utility; information is accurate, and based on
benefits, designating a beneficiary, • Evaluate the accuracy of the valid assumptions and methodology;
granting a power of attorney, electing agency’s estimate of the burden of the and ways in which we can minimize the
monthly payments, electing to withhold collection of information, including the burden of the collection of information
income tax from periodic payments, validity of the methodology and on those who are to respond, through
changing contact information, and assumptions used; the use of appropriate technological
applying for electronic direct deposit. • Enhance the quality, utility, and collection or other forms of information
PBGC intends to add three new forms clarity of the information to be technology.
to the information collection. Two of the collected; and Approximately 4,300 RI 98–7 forms
new forms will be used to ascertain the • Minimize the burden of the will be completed annually. The form
continuing eligibility of participants collection of information on those who takes approximately 5 minutes to
complete. The estimated annual burden utility; whether our estimate of the 3206–0XXX). Due to recent court orders,
is 358 hours. public burden of this collection of the Office of Personnel Management
For copies of this proposal, contact information is accurate, and based on (OPM) must compute, or recomputed as
Cyrus S. Benson on (202) 606–4808, valid assumptions and methodology; applicable, the disability annuities for
FAX (202) 606–0910 or via e-mail to and ways in which we can minimize the individuals who performed service as
Cyrus.Benson@opm.gov. Please include burden of the collection of information law enforcement officers, firefighters,
a mailing address with your request. on those who are to respond, through nuclear materials carriers, Customs and
DATES: Comments on this proposal the use of appropriate technological Border Patrol officers, members of the
should be received within 60 calendar collection techniques or other forms of Capitol and the Supreme Court police,
days from the date of this publication. information technology. Congressional employees, members of
ADDRESSES: Send or deliver comments Approximately 2,000 forms will be Congress, and air traffic controllers.
to— completed annually. The form takes Because these court orders were handed
James K. Freiert (Acting), Deputy approximately 15 minutes to complete. down long after some of the affected
Associate Director, Retirement The annual burden is estimated at 500 individuals retired and/or died and they
Operations, Retirement and Benefits, hours. are not identified in the OPM computer
U.S. Office of Personnel Management, For copies of this proposal, contact systems, it is necessary for these
1900 E Street, NW., Room 3305, Cyrus S. Benson on (202) 606–4808, individuals to self-identify. Form RI 20–
Washington, DC 20415–3500. FAX (202) 606–0910 or via e-mail to 123 is needed on the OPM website so
For information regarding Cyrus.Benson@opm.gov. Please include these individuals and their survivors
administrativecoordination contact: a mailing address with your request. can make the request.
Cyrus S. Benson, Team Leader, DATES: Comments on this proposal Comments are particularly invited on:
Publications Team, RB/RM/ should be received within 60 calendar Whether this collection of information
days from the date of this publication. is necessary for the proper performance
Administrative Services, U.S. Office of
of functions of the Office of Personnel
Personnel Management, 1900 E Street, ADDRESSES: Send or deliver comments
Management, and whether it will have
NW., Room 4H28, Washington, DC to James K. Freiert (Acting), Deputy
practical utility; whether our estimate of
20415, (202) 606–4808. Associate Director, Retirement
the public burden of this collection is
U.S. Office of Personnel Management. Operations, Retirement and Benefits,
accurate, and based on valid
John Berry, U.S. Office of Personnel Management, assumptions and methodology; and
1900 E Street, NW., Room 3305, ways in which we can minimize the
Director.
Washington, DC 20415–3500. burden of the collection of information
[FR Doc. 2010–13164 Filed 6–1–10; 8:45 am]
For information regarding
BILLING CODE 6325–38–P on those who are to respond, through
administrative coordination contact: use of the appropriate technological
Cyrus S. Benson, Team Leader,
collection techniques or other forms of
Publications Team, RB/RM/
OFFICE OF PERSONNEL information technology.
Administrative Services, U.S. Office of We estimate that we will receive 720
MANAGEMENT Personnel Management, 1900 E Street, responses a year and the time it takes to
[OMB Control No. 3206–0142; Standard NW., Room 4H28, Washington, DC respond is estimated to be 5 minutes.
Form 2808] 20415, (202) 606–4808. The annual burden is estimated to be 60
Proposed Collection; Comment U.S. Office of Personnel Management. hours.
Request for Review of a Revised John Berry, For copies of this proposal, contact
Director. Cyrus S. Benson on (202) 606–4808,
Information Collection
[FR Doc. 2010–13166 Filed 6–1–10; 8:45 am]
FAX (202) 606–0910 or via E-mail to
AGENCY: Office of Personnel Cyrus.Benson@opm.gov. Please include
Management. a mailing address with your request.
ACTION: Notice. DATES: Comments on this proposal
OFFICE OF PERSONNEL should be received within 60 calendar
SUMMARY: In accordance with the MANAGEMENT days from the date of this publication.
Paperwork Reduction Act of 1995 (Pub. ADDRESSES: Send or deliver comments
L. 104–13, May 22, 1995), this notice [OMB Control No. 3206–0XXX; Form RI 20–
123]
to James K. Freiert (Acting), Deputy
announces that the Office of Personnel Associate Director, Retirement
Management (OPM) intends to submit to Operations, Retirement & Benefits, U.S.
the Office of Management and Budget Proposed Information Collection;
Request for Comment on a New Office of Personnel Management, 1900 E
(OMB) a request for review of a revised Street, NW., Room 3305, Washington,
information collection. This information Information Collection
DC 20415–3500.
collection, ‘‘Designation of Beneficiary: AGENCY: Office of Personnel FOR INFORMATION REGARDING
Civil Service Retirement System Management. ADMINISTRATIVE COORDINATION CONTACT:
(CSRS)’’ (OMB Control No. 3206–0142; ACTION: Notice. Cyrus S. Benson, Team Leader,
Standard Form 2808), is used by Publications Team, Retirement &
persons covered by CSRS to designate a SUMMARY: In accordance with the
Benefits/Resource Management, Office
beneficiary to receive the lump sum Paperwork Reduction Act of 1995 (Pub. of Personnel Management, 1900 E
payment due from the Civil Service L. 10413, May 22, 1995), this notice Street, NW., Room 4H28, Washington,
Retirement and Disability Fund in the announces that the Office of Personnel DC 20415, (202) 606–4808.
event of their death. Management (OPM) intends to submit to
Comments are particularly invited on: the Office of Management and Budget U.S. Office of Personnel Management.
Whether this information is necessary (OMB) a request for review of a new John Berry,
for the proper performance of functions information collection. ‘‘Request for Director.
of the Office of Personnel Management, Case Review for Enhanced Disability [FR Doc. 2010–13167 Filed 6–1–10; 8:45 am]
and whether it will have practical Annuity Benefit’’ (OMB Control No. BILLING CODE 6325–38–P
OFFICE OF PERSONNEL Cyrus S. Benson, Team Leader, GEPS 1 as a product, also authorized
MANAGEMENT Publications Team, RB/RM/ functionally equivalent agreements to be
Administrative Services, U.S. Office of included within the product, provided
Proposed Collection; Comment Personnel Management, 1900 E Street, that they meet the requirements of 39
Request for Review of a Revised NW., Room 4H28, Washington, DC U.S.C. 3633. Id. at 1. In Order No. 290,
Information Collection: (OMB Control 20415, (202) 606–4808. the Commission approved the GEPS 2
No. 3206–0162; OPM Form 1530) U.S. Office of Personnel Management. product.2
The instant contract. The Postal
AGENCY: Office of Personnel John Berry,
Service filed the instant contract
Management. Director. pursuant to 39 CFR 3015.5. In addition,
ACTION: Notice. [FR Doc. 2010–13168 Filed 6–1–10; 8:45 am] the Postal Service contends that the
BILLING CODE 6325–38–P contract is in accordance with Order No.
SUMMARY: In accordance with the 86. The term of the contract is one year
Paperwork Reduction Act of 1995 (Pub. from the date the Postal Service notifies
L. 104–13, May 22, 1995), this notice POSTAL REGULATORY COMMISSION the customer that all necessary
announces that the Office of Personnel regulatory approvals have been
Management (OPM) intends to submit to [Docket Nos. CP2010-59; Order No. 467]
received.
the Office of Management and Budget In support of its Notice, the Postal
New Postal Product
(OMB) a request for comments of a Service filed four attachments as
revised information collection. This AGENCY: Postal Regulatory Commission. follows:
information collection, ‘‘Report of ACTION: Notice. •Attachment 1—a redacted copy of
Medical Examination of Person Electing the contract;
Survivor Benefits Under the Civil SUMMARY: The Commission is noticing a •Attachment 2—a certified statement
Service Retirement System’’ (OMB recently–filed Postal Service Request to required by 39 CFR 3015.5(c)(2);
Control No. 3206–0162; OPM Form add a Global Expedited Package •Attachment 3—a redacted copy of
1530), is used to collect information Services Contracts 2 Negotiated Service Governors’ Decision No. 08-7 which
regarding an annuitant’s health so that Agreement to the Competitive Product establishes prices and classifications for
OPM can determine whether the List. The notice addresses procedural GEPS contracts, a description of
insurable interest survivor benefit steps. applicable GEPS contracts, formulas for
election can be allowed. DATES: Comments are due: June 7, 2010. prices, an analysis and certification of
Comments are particularly invited on: the formulas and certification of the
ADDRESSES: Submit comments Governors’ vote; and
Whether this information is necessary electronically via the Commission’s
for the proper performance of functions •Atachment 4—an application for
Filing Online system at http:// non-public treatment of materials to
of the Office of Personnel Management, www.prc.gov. Commenters who cannot
and whether it will have practical maintain redacted portions of the
file electronically should contact the contract and supporting documents
utility; whether our estimate of the person identified in the FOR FURTHER
public burden of this collection of under seal.
INFORMATION CONTACT section for advice The Notice advances reasons why the
information is accurate, and based on on alternatives to electronic filing. instant GEPS 2 contract fits within the
valid assumptions and methodology;
FOR FURTHER INFORMATION CONTACT: Mail Classification Schedule language
and ways in which we can minimize the
Brian Corcoran, Acting General Counsel, for GEPS 2. The Postal Service identifies
burden of the collection of information
at 202-789-6894 or customer-specific information, general
on those who are to respond, through
brian.corcoran@prc.gov. contract terms, and other differences
the use of appropriate technological
SUPPLEMENTARY INFORMATION: that distinguish the instant contract
collection techniques or other forms of
from the baseline GEPS 2 agreement, all
information technology. Table of Contents of which are highlighted in the Notice.
Approximately 500 OPM Form 1530 Id. at 3-6.
will be completed annually. We I. Introduction
II. Notice of Filing The Postal Service contends that the
estimate it takes approximately 90 instant contract is functionally
minutes to complete the form. The III. Ordering Paragraphs
equivalent to previously filed GEPS
annual estimated burden is 750 hours. I. Introduction contracts and is substantially similar to
For copies of this proposal, contact On May 27, 2010, the Postal Service that in Docket No. CP2009-50 in terms
Cyrus S. Benson on (202) 606–4808, filed a notice announcing that it has of the product being offered, the market
FAX (202) 606–0910 or via e-mail to entered into an additional Global in which it is offered, and its cost
Cyrus.Benson@opm.gov. Please include Expedited Package Services 2 (GEPS 2) characteristics. Id. at 2-3. See also id. at
a mailing address with your request. contract.1 The Postal Service believes 6 (‘‘[T]he relevant cost and market
DATES: Comments on this proposal the instant contract is functionally characteristics are similar, if not the
should be received within 60 calendar equivalent to previously submitted same for these five contracts and the
days from the date of this publication. GEPS 2 contracts, and is supported by baseline GEPS 2 contract’’).
ADDRESSES: Send or deliver comments Governors’ Decision No. 08-7, attached The Postal Service also contends that
to— to the Notice and originally filed in its filings demonstrate that the new
James K. Freiert (Acting), Deputy Docket No. CP2008-4. Id. at 1, GEPS 2 contract complies with the
Associate Director, Retirement Attachment 3. The Notice also explains requirements of 39 U.S.C. 3633. It
Operations, Retirement and Benefits, that Order No. 86, which established requests that the contract be included
U.S. Office of Personnel Management, within the GEPS 2 product. Id. at 7.
1 Notice of United States Postal Service Filing of
1900 E Street, NW., Room 3305,
Functionally Equivalent Global Expedited Package 2 Docket No. CP2009-50, Order Granting
Washington, DC 20415–3500. Services 2 Negotiated Service Agreement and Clarification and Adding Global Expedited Package
For information regarding Application for Non-Public Treatment of Materials Services 2 to the Competitive Product List, August
administrative coordination contact: Filed Under Seal, May 27, 2010 (Notice). 28, 2009 (Order No. 290).
II. Notice of Filing INFORMATION CONTACT section for advice the formulas and certification of the
The Commission establishes Docket on alternatives to electronic filing. Governors’ vote; and
Nos. CP2010-59 for consideration of FOR FURTHER INFORMATION CONTACT: •Atachment 4—an application for
matters related to the contracts Brian Corcoran, Acting General Counsel, non-public treatment of materials to
identified in the Postal Service’s Notice. at 202-789-6894 or maintain redacted portions of the
Interested persons may submit brian.corcoran@prc.gov. contracts and supporting documents
comments on whether the Postal under seal.
Service’s contract is consistent with the The Notice advances reasons why the
policies of 39 U.S.C. 3632, 3633 or 3642. Table of Contents instant GEPS 2 contracts fit within the
Comments are due no later than June 7, I. Introduction Mail Classification Schedule language
2010. The public portions of these II. Notice of Filing for GEPS 2. The Postal Service identifies
filings can be accessed via the III. Ordering Paragraphs customer-specific information, general
Commission’s Web site (http:// contract terms, and other differences
I. Introduction that distinguish the instant contracts
www.prc.gov).
The Commission appoints Paul L. On May 26, 2010, the Postal Service from the baseline GEPS 2 agreement, all
Harrington to serve as Public filed a notice announcing that it has of which are highlighted in the Notice.
Representative in the captioned entered into five additional Global Id. at 3-6.
proceedings. Expedited Package Services 2 (GEPS 2) The Postal Service contends that the
contracts.1 The Postal Service believes instant contracts are functionally
III. Ordering Paragraphs the instant contracts are functionally equivalent to previously filed GEPS
It is ordered: equivalent to previously submitted contracts and are substantially similar to
1. The Commission establishes Docket GEPS 2 contracts, and are supported by that in Docket No. CP2009-50 in terms
No. CP2010–59 for consideration of Governors’ Decision No. 08-7, attached of the product being offered, the market
matters raised by the Postal Service’s to the Notice and originally filed in in which it is offered, and its cost
Notice. Docket No. CP2008-4. Id. at 1, characteristics. Id. at 2-3. See also id. at
2. Comments by interested persons in Attachment 3. The Notice also explains 6 (‘‘[T]he relevant cost and market
these proceedings are due no later than that Order No. 86, which established characteristics are similar, if not the
June 7, 2010. GEPS 1 as a product, also authorized same for these five contracts and the
3. Pursuant to 39 U.S.C. 505, Paul L. functionally equivalent agreements to be baseline GEPS 2 contract’’).
Harrington is appointed to serve as the included within the product, provided The Postal Service also contends that
officer of the Commission (Public that they meet the requirements of 39 its filings demonstrate that each of the
Representative) to represent the U.S.C. 3633. Id. at 1. In Order No. 290, new GEPS 2 contracts complies with the
interests of the general public in these the Commission approved the GEPS 2 requirements of 39 U.S.C. 3633. It
proceedings. product.2 requests that the contracts be included
4. The Secretary shall arrange for The instant contracts. The Postal within the GEPS 2 product. Id. at 7.
publication of this order in the Federal Service filed the instant contracts II. Notice of Filing
Register. pursuant to 39 CFR 3015.5. In addition,
the Postal Service contends that each The Commission establishes Docket
By the Commission. Nos. CP2010-54, CP2010-55, DP2010-56,
Shoshana M. Grove, contract is in accordance with Order No.
86. The term of each contract is one year CP2010-57 and CP2010-58 for
Secretary. consideration of matters related to the
from the date the Postal Service notifies
[FR Doc. 2010–13298 Filed 6–1–10; 8:45 am]
the customer that all necessary contracts identified in the Postal
BILLING CODE: 7710–FW–S
regulatory approvals have been Service’s Notice.
received. Notice at 2-3. These dockets are addressed on a
In support of its Notice, the Postal consolidated basis for purposes of this
POSTAL REGULATORY COMMISSION order. Filings with respect to a
Service filed four attachments as
[Docket Nos. CP2010-54, CP2010-55, follows: particular contract should be filed in
CP2010-56, CP2010-57 and CP2010-58; •Attachments 1A, 1B, 1C, 1D and that docket.
Order No. 466] 1E—redacted copies of five contracts Interested persons may submit
and applicable annexes; comments on whether the Postal
New Postal Products •Attachments 2A, 2B, 2C, 2D and Service’s contracts are consistent with
2E—a certified statement required by 39 the policies of 39 U.S.C. 3632, 3633 or
AGENCY: Postal Regulatory Commission. 3642. Comments are due no later than
ACTION: Notice. CFR 3015.5(c)(2) for each of the five
contracts; June 4, 2010. The public portions of
SUMMARY: The Commission is noticing a •Attachment 3—a redacted copy of these filings can be accessed via the
recently–filed Postal Service Request to Governors’ Decision No. 08-7 which Commission’s Web site (http://
add five additional Global Expedited establishes prices and classifications for www.prc.gov).
GEPS contracts, a description of The Commission appoints Paul L.
Package Services Contracts 2 Negotiated
applicable GEPS contracts, formulas for Harrington to serve as Public
Service Agreements to the Competitive
prices, an analysis and certification of Representative in the captioned
Product List. The notice addresses
proceedings.
procedural steps.
1 Notice of United States Postal Service Filing of

DATES: Comments are due: June 4, 2010. III. Ordering Paragraphs
Five Functionally Equivalent Global Expedited
ADDRESSES: Submit comments Package Services 2 Negotiated Service Agreements It is ordered:
electronically via the Commission’s and Application for Non-Public Treatment of 1. The Commission establishes Docket
Filing Online system at http:// Materials Filed Under Seal, May 26, 2010 (Notice). Nos. CP2010–54, CP2010–55, CP2010–
2 Docket No. CP2009-50, Order Granting
www.prc.gov. Commenters who cannot Clarification and Adding Global Expedited Package
56, CP2010–57 and CP2010–58 for
file electronically should contact the Services 2 to the Competitive Product List, August consideration of matters raised by the
person identified in the FOR FURTHER 28, 2009 (Order No. 290). Postal Service’s Notice.
2. Comments by interested persons in Percent 409 3rd Street, SW., Suite 6050,
these proceedings are due no later than Washington, DC 20416.
June 4, 2010. For Physical Damage: SUPPLEMENTARY INFORMATION: The notice
3. Pursuant to 39 U.S.C. 505, Paul L. Homeowners With Credit of the Presidential disaster declaration
Harrington is appointed to serve as the Available Elsewhere ............ 5.125
for the Commonwealth of Kentucky,
officer of the Commission (Public Homeowners Without Credit
Available Elsewhere ............ 2.562 dated 05/11/2010 is hereby amended to
Representative) to represent the Businesses With Credit Avail- include the following areas as adversely
interests of the general public in these able Elsewhere .................... 6.000 affected by the disaster:
proceedings. Businesses Without Credit Primary Counties: (Physical Damage and
4. The Secretary shall arrange for Available Elsewhere ............ 4.000 Economic Injury Loans): Anderson,
publication of this order in the Federal Non-Profit Organizations With Allen, Barren, Boyle, Elliott, Fleming,
Register. Credit Available Elsewhere .. 3.625 Garrard, Green, Hart, Henry, Jackson,
Non-Profit Organizations With-
By the Commission.
out Credit Available Else-
Jessamine, Leslie, Magoffin, Menifee,
Shoshana M. Grove, where ................................... 3.000 Monroe, Montgomery, Nelson,
Secretary. For Economic Injury: Nicholas, Owen, Powell, Pulaski,
[FR Doc. 2010–13286 Filed 6–1–10; 8:45 am] Businesses & Small Agricul- Simpson, Warren, Washington.
tural Cooperatives Without Contiguous Counties: (Economic Injury
BILLING CODE: 7710–FW–S
Credit Available Elsewhere .. 4.000 Loans Only):
Non-Profit Organizations With- Kentucky: Bell, Breathitt, Bullitt,
out Credit Available Else- Carroll, Clay, Edmonson, Floyd,
where ................................... 3.000 Gallatin, Grant, Grayson, Hardin,
SMALL BUSINESS ADMINISTRATION
Harlan, Harrison, Johnson, Knott,
The number assigned to this disaster Lee, Mccreary, Oldham, Owsley,
[Disaster Declaration #12192 and #12193] for physical damage is 12192 7 and for Perry, Robertson, Spencer, Trimble,
economic injury is 12193 0. Wayne, Wolfe.
Florida Disaster #FL–00053 The State which received an EIDL Tennessee: Clay, Macon, Sumner.
AGENCY: U.S. Small Business
Declaration # is Florida. All other information in the original
Administration. (Catalog of Federal Domestic Assistance declaration remains unchanged.
ACTION: Notice.
Numbers 59002 and 59008)
(Catalog of Federal Domestic Assistance
Dated: May 25, 2010. Numbers 59002 and 59008)
SUMMARY: This is a notice of an Karen G. Mills,
Administrative declaration of a disaster James E. Rivera,
Administrator.
for the State of Florida dated 05/25/ Associate Administrator for Disaster
[FR Doc. 2010–13192 Filed 6–1–10; 8:45 am] Assistance.
2010.
BILLING CODE 8025–01–P [FR Doc. 2010–13186 Filed 6–1–10; 8:45 am]
Incident: Freezing Temperatures and
Sinkholes. BILLING CODE 8025–01–P
Incident Period: 01/02/2010 through SMALL BUSINESS ADMINISTRATION
02/01/2010.
Effective Date: 05/25/2010. SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #12168 and #12169]
Physical Loan Application Deadline
Date: 07/26/2010. [Disaster Declaration #12159 and
Kentucky Disaster Number KY–00032
Economic Injury (EIDL) Loan #12160]
Application Deadline Date: 02/25/2011. AGENCY: U.S. Small Business
Administration. Tennessee Disaster Number TN–00039
ADDRESSES: Submit completed loan
applications to: U.S. Small Business ACTION: Amendment 2. AGENCY: U.S. Small Business
Administration, Processing and Administration.
SUMMARY: This is an amendment of the
Disbursement Center, 14925 Kingsport ACTION: Amendment 6.
Presidential declaration of a major
Road, Fort Worth, TX 76155. disaster for the Commonwealth of SUMMARY: This is an amendment of the
FOR FURTHER INFORMATION CONTACT: A. Kentucky (FEMA–1912–DR), dated 05/ Presidential declaration of a major
Escobar, Office of Disaster Assistance, 11/2010. disaster for the State of Tennessee
U.S. Small Business Administration, Incident: Severe Storms, Flooding, (FEMA–1909–DR), dated 05/04/2010 .
409 3rd Street, SW., Suite 6050, Mudslides, and Tornadoes. Incident: Severe Storms, Flooding,
Washington, DC 20416. Incident Period: 05/01/2010 and Straight-line Winds, and Tornadoes
SUPPLEMENTARY INFORMATION: Notice is continuing. Incident Period: 04/30/2010 and
hereby given that as a result of the Effective Date: 05/24/2010. continuing through 05/18/2010.
Administrator’s disaster declaration, Physical Loan Application Deadline DATES: Effective Date: 05/18/2010.
applications for disaster loans may be Date: 07/12/2010. Physical Loan Application Deadline
filed at the address listed above or other EIDL Loan Application Deadline Date: Date: 07/06/2010.
locally announced locations. 02/11/2011. EIDL Loan Application Deadline Date:
The following areas have been ADDRESSES: Submit completed loan 02/04/2011.
determined to be adversely affected by applications to: U.S. Small Business ADDRESSES: Submit completed loan
the disaster: Administration, Processing And applications to: U.S. Small Business
Primary Counties: Hillsborough. Disbursement Center, 14925 Kingsport Administration, Processing and
Contiguous Counties: Road, Fort Worth, TX 76155. Disbursement Center, 14925 Kingsport
Florida: Hardee, Manatee, Pasco, FOR FURTHER INFORMATION CONTACT: A. Road, Fort Worth, TX 76155.
Pinellas, Polk. Escobar, Office of Disaster Assistance, FOR FURTHER INFORMATION CONTACT: A
The Interest Rates are: U.S. Small Business Administration, Escobar, Office of Disaster Assistance,
U.S. Small Business Administration, (Catalog of Federal Domestic Assistance ACTION: Notice.
409 3rd Street, SW., Suite 6050, Numbers 59002 and 59008)
Washington, DC 20416. SUMMARY: This is a Notice of the
James E. Rivera,
Presidential declaration of a major
SUPPLEMENTARY INFORMATION: The notice Associate Administrator for Disaster
disaster for the State of Oklahoma
of the President’s major disaster Assistance.
(FEMA–1917–DR), dated 05/24/2010.
declaration for the State of Tennessee, [FR Doc. 2010–13185 Filed 6–1–10; 8:45 am]
dated 05/04/2010 is hereby amended to Incident: Severe storms, tornadoes,
establish the incident period for this and straight-line winds.
disaster as beginning 04/30/2010 and Incident Period: 05/10/2010 through
continuing through 05/18/2010. SMALL BUSINESS ADMINISTRATION 05/13/2010.
All other information in the original Effective Date: 05/24/2010.
declaration remains unchanged. Physical Loan Application Deadline
(Catalog of Federal Domestic Assistance North Dakota Disaster Number ND– Date: 07/23/2010.
Numbers 59002 and 59008) 00022 Economic Injury (EIDL) Loan
Application Deadline Date: 02/24/2011.
James E. Rivera, AGENCY: U.S. Small Business
Associate Administrator for Disaster Administration.
Assistance. applications to: U.S. Small Business
ACTION: Amendment 1.
Administration, Processing and
[FR Doc. 2010–13179 Filed 6–1–10; 8:45 am]
SUMMARY: This is an amendment of the Disbursement Center, 14925 Kingsport
Presidential declaration of a major Road, Fort Worth, TX 76155.
disaster for Public Assistance Only for FOR FURTHER INFORMATION CONTACT: A.
SMALL BUSINESS ADMINISTRATION the State of North Dakota (FEMA–1907– Escobar, Office of Disaster Assistance,
DR), dated 04/30/2010. U.S. Small Business Administration,
Incident: Flooding. 409 3rd Street, SW., Suite 6050,
[Disaster Declaration #12188 and #12189] Incident Period: 02/26/2010 and Washington, DC 20416.
continuing.
Mississippi Disaster Number MS– SUPPLEMENTARY INFORMATION: Notice is
Effective Date: 05/22/2010.
00039 Physical Loan Application Deadline hereby given that as a result of the
Date: 06/29/2010. President’s major disaster declaration on
Economic Injury (EIDL) Loan 05/24/2010, applications for disaster
Administration. loans may be filed at the address listed
ACTION: Amendment 1. above or other locally announced
applications to: U.S. Small Business locations.
SUMMARY: This is an amendment of the
Administration, Processing And The following areas have been
Presidential declaration of a major determined to be adversely affected by
disaster for Public Assistance Only for Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155. the disaster:
the State of Mississippi (FEMA–1916–
DR), dated 05/14/2010. FOR FURTHER INFORMATION CONTACT: A. Primary Counties (Physical Damage and
Incident: Severe Storms, Tornadoes, Escobar, Office of Disaster Assistance, Economic Injury Loans):
and Flooding. U.S. Small Business Administration, Carter, Cleveland, McIntosh,
409 3rd Street, SW., Suite 6050, Okfuskee, Oklahoma, Pottawatomie,
Incident Period: 05/01/2010 through
Washington, DC 20416. Seminole.
05/02/2010.
SUPPLEMENTARY INFORMATION: The notice Contiguous Counties (Economic Injury
Effective Date: 05/24/2010.
of the President’s major disaster Loans Only):
Physical Loan Application Deadline
declaration for Private Non-Profit Oklahoma: Canadian, Creek, Garvin,
Date: 07/13/2010.
organizations in the State of North Haskell, Hughes, Jefferson,
Economic Injury (EIDL) Loan Dakota, dated 04/30/2010, is hereby Johnston, Kingfisher, Lincoln,
Application Deadline Date: 02/14/2011. amended to include the following areas Logan, Love, Marshall, McClain,
ADDRESSES: Submit completed loan as adversely affected by the disaster. Murray, Muskogee, Okmulgee,
applications to: U.S. Small Business Primary Counties: Eddy, Mcintosh. Pittsburg, Pontotoc, Stephens.
Administration, Processing and All other information in the original The Interest Rates are:
Disbursement Center, 14925 Kingsport declaration remains unchanged.
Road, Fort Worth, TX 76155. For Physical Damage:
FOR FURTHER INFORMATION CONTACT: A. Numbers 59002 and 59008) Homeowners with Credit
Escobar, Office of Disaster Assistance, Available Elsewhere .......... 5.500
U.S. Small Business Administration, James E. Rivera, Homeowners without Credit
409 3rd Street, SW., Suite 6050, Associate Administrator for Disaster Available Elsewhere .......... 2.750
Washington, DC 20416. Assistance. Businesses with Credit Avail-
[FR Doc. 2010–13188 Filed 6–1–10; 8:45 am] able Elsewhere .................. 6.000
SUPPLEMENTARY INFORMATION: The notice Businesses without Credit
of the President’s major disaster Available Elsewhere .......... 4.000
declaration for Private Non-Profit Non-Profit Organizations with
organizations in the State of Mississippi, Credit Available Elsewhere 3.625

SMALL BUSINESS ADMINISTRATION Non-Profit Organizations
dated 05/14/2010, is hereby amended to
include the following areas as adversely [Disaster Declaration #12194 and #12195] without Credit Available
Elsewhere .......................... 3.000
affected by the disaster. For Economic Injury:
Primary Counties: Marshall, Union. Oklahoma Disaster #OK–00038
Businesses & Small Agricul-
All other information in the original AGENCY: U.S. Small Business tural Cooperatives without
declaration remains unchanged. Administration. Credit Available Elsewhere 4.000
Non-Profit Organizations Percent organizations in the State of New

without Credit Available Hampshire, dated 05/12/2010, is hereby
Elsewhere .......................... 3.000 Homeowners without Credit amended to include the following areas
Available Elsewhere ................ 2.750 as adversely affected by the disaster.
The number assigned to this disaster Businesses with Credit Available
for physical damage is 12194C and for Elsewhere ................................ 6.000
Primary Counties: Hillsborough.
economic injury is 121950. Businesses without Credit Avail- All other information in the original
able Elsewhere ........................ 4.000 declaration remains unchanged.
Non-Profit Organizations With (Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
Credit Available Elsewhere ..... 3.625 Numbers 59002 and 59008)
James E. Rivera, Non-Profit Organizations Without
Associate Administrator for Disaster Credit Available Elsewhere ..... 3.000 James E. Rivera,
Assistance. For Economic Injury: Associate Administrator for Disaster
Businesses & Small Agricultural Assistance.
[FR Doc. 2010–13199 Filed 6–1–10; 8:45 am]
Cooperatives without Credit
BILLING CODE 8025–01–P [FR Doc. 2010–13196 Filed 6–1–10; 8:45 am]
Available Elsewhere ................ 4.000
Non-Profit Organizations without BILLING CODE 8025–01–P
Credit Available Elsewhere ..... 3.000
SMALL BUSINESS ADMINISTRATION
The number assigned to this disaster SMALL BUSINESS ADMINISTRATION
for physical damage is 12196 C and for
Arkansas Disaster # AR–00043 economic injury is 12197 0. [Disaster Declaration #12100 and #12101]
The State which received an EIDL
AGENCY: U.S. Small Business Declaration # is Arkansas. Massachusetts Disaster Number MA–
Administration. 00025
ACTION: Notice
Numbers 59002 and 59008) AGENCY: U.S. Small Business
SUMMARY: This is a notice of an Dated: May 26, 2010. Administration.
Administrative declaration of a disaster Karen G. Mills, ACTION: Amendment 2.
for the State of Arkansas dated 05/26/ Administrator.
2010. SUMMARY: This is an amendment of the
[FR Doc. 2010–13197 Filed 6–1–10; 8:45 am]
Incident: Severe storms, tornadoes Presidential declaration of a major
and flooding. disaster for the State of Massachusetts
Incident Period: 04/30/2010 through (FEMA–1895–DR), dated 03/29/2010.
05/06/2010. SMALL BUSINESS ADMINISTRATION Incident: Severe Storms and Flooding.
Effective Date: 05/26/2010. Incident Period: 03/12/2010 through
Physical Loan Application Deadline [Disaster Declaration #12177 and #12178] 04/26/2010.
Date: 07/26/2010. Effective Date: 05/24/2010.
Economic Injury (EIDL) Loan New Hampshire Disaster Number NH– Physical Loan Application Deadline
Application Deadline Date: 02/28/2011. 00017 Date: 06/28/2010.
ADDRESSES: Submit completed loan AGENCY: U.S. Small Business EIDL Loan Application Deadline Date:
applications to: U.S. Small Business Administration. 12/29/2010.
Administration, Processing and ADDRESSES: Submit completed loan
Disbursement Center, 14925 Kingsport applications to: U.S. Small Business
Road, Fort Worth, TX 76155. SUMMARY: This is an amendment of the Administration, Processing and
FOR FURTHER INFORMATION CONTACT: A. Presidential declaration of a major Disbursement Center, 14925 Kingsport
Escobar, Office of Disaster Assistance, disaster for Public Assistance Only for Road, Fort Worth, TX 76155.
U.S. Small Business Administration, the State of New Hampshire (FEMA– FOR FURTHER INFORMATION CONTACT: A.
409 3rd Street, SW., Suite 6050, 1913–DR), dated 05/12/2010. Escobar, Office of Disaster Assistance,
Washington, DC 20416 Incident: Severe Storms and Flooding.
U.S. Small Business Administration,
SUPPLEMENTARY INFORMATION: Notice is Incident Period: 03/14/2010 through
409 3rd Street, SW., Suite 6050,
hereby given that as a result of the 03/31/2010.
Washington, DC 20416.
Administrator’s disaster declaration, DATES: Effective Date: 05/24/2010.
SUPPLEMENTARY INFORMATION: The notice
applications for disaster loans may be Physical Loan Application Deadline
filed at the address listed above or other Date: 07/12/2010. of the President’s major disaster
locally announced locations. Economic Injury (EIDL) Loan declaration for the State of
The following areas have been Application Deadline Date: 02/14/2011. Massachusetts, dated 03/29/2010 is
determined to be adversely affected by hereby amended to extend the deadline
the disaster: for filing applications for physical
applications to: U.S. Small Business
damages as a result of this disaster to
Primary Counties: Lonoke, Saline. Administration, Processing and
Contiguous Counties: 06/28/2010.
Disbursement Center, 14925 Kingsport
Arkansas: Arkansas, Faulkner, Garland, All other information in the original
Road, Fort Worth, TX 76155.
Grant, Hot Spring, Jefferson, Perry, declaration remains unchanged.
FOR FURTHER INFORMATION CONTACT: A
Prairie, Pulaski, White. (Catalog of Federal Domestic Assistance
Escobar, Office of Disaster Assistance,

The Interest Rates are: Numbers 59002 and 59008)
U.S. Small Business Administration,
409 3rd Street, SW., Suite 6050, James E. Rivera,
Percent
Washington, DC 20416. Associate Administrator for Disaster
For Physical Damage: SUPPLEMENTARY INFORMATION: The notice Assistance.
Homeowners with Credit Avail- of the President’s major disaster [FR Doc. 2010–13194 Filed 6–1–10; 8:45 am]
able Elsewhere ........................ 5.500 declaration for Private Non-Profit BILLING CODE 8025–01–P
SMALL BUSINESS ADMINISTRATION The State which received an EIDL SMALL BUSINESS ADMINISTRATION
Declaration # is North Carolina
[Disaster Declaration # 12190 and # 12191] [Disaster Declaration #12170 and #12171]
North Carolina Disaster # NC–00027 Numbers 59002 and 59008) Kentucky Disaster Number KY–00033
AGENCY: U.S. Small Business Dated: May 25, 2010. AGENCY: U.S. Small Business
Administration. Karen G. Mills, Administration.
ACTION: Notice. Administrator. ACTION: Amendment 2.
[FR Doc. 2010–13193 Filed 6–1–10; 8:45 am]
SUMMARY: This is a notice of an SUMMARY: This is an amendment of the
Administrative declaration of a disaster Presidential declaration of a major
for the State of NORTH CAROLINA disaster for Public Assistance Only for
dated 05/25/2010. SMALL BUSINESS ADMINISTRATION the Commonwealth of Kentucky
Incident: Severe Storms. (FEMA–1912–DR), dated 05/11/2010.
Incident Period: 05/16/2010. Incident: Severe Storms, Flooding,
[Disaster Declaration #12181 and #12182] Mudslides, and Tornadoes.
DATES: Effective Date: 05/25/2010.
Physical Loan Application Deadline Incident Period: 05/01/2010 and
South Dakota Disaster Number SD– continuing.
Date: 07/26/2010. 00031
Economic Injury (EIDL) Loan Effective Date: 05/24/2010.
Application Deadline Date: 02/25/2011. Physical Loan Application Deadline
Date: 07/12/2010.
ADDRESSES: Submit completed loan Administration. Economic Injury (EIDL) Loan
applications to: U.S. Small Business ACTION: Amendment 1. Application Deadline Date: 02/11/2011.
Administration, Processing And
Disbursement Center, 14925 Kingsport
SUMMARY: This is an amendment of the applications to: U.S. Small Business
Road, Fort Worth, TX 76155.
Presidential declaration of a major Administration, Processing And
FOR FURTHER INFORMATION CONTACT: A disaster for Public Assistance Only for Disbursement Center, 14925 Kingsport
Escobar, Office of Disaster Assistance, the State of South Dakota (FEMA–1915– Road, Fort Worth, TX 76155.
U.S. Small Business Administration, DR), dated 05/13/2010. FOR FURTHER INFORMATION CONTACT: A.
409 3rd Street, SW., Suite 6050,
Incident: Flooding. Escobar, Office of Disaster Assistance,
Incident Period: 03/10/2010 and U.S. Small Business Administration,
SUPPLEMENTARY INFORMATION: Notice is 409 3rd Street, SW., Suite 6050,
hereby given that as a result of the continuing.
Administrator’s disaster declaration, Effective Date: 05/24/2010.
applications for disaster loans may be Physical Loan Application Deadline of the President’s major disaster
filed at the address listed above or other Date: 07/12/2010. declaration for Private Non-Profit
locally announced locations.
Economic Injury (EIDL) Loan organizations in the Commonwealth of
The following areas have been
Application Deadline Date: 02/14/2011. Kentucky, dated 05/11/2010, is hereby
determined to be adversely affected by
amended to include the following areas
the disaster: ADDRESSES: Submit completed loan
as adversely affected by the disaster.
Primary Counties: Hoke. applications to: U.S. Small Business
Contiguous Counties: North Carolina: Administration, Processing and Primary Counties: Anderson, Boyd,
Cumberland, Moore, Richmond, Disbursement Center, 14925 Kingsport Breckinridge, Butler, Clay, Clinton,
Robeson, Scotland. Road, Fort Worth, TX 76155. Elliott, Estill, Fleming, Green,
The Interest Rates are: Greenup, Jackson, Hancock,
FOR FURTHER INFORMATION CONTACT: A. Henderson, Hopkins, Knott, Larue,
Percent Escobar, Office of Disaster Assistance, Leslie, Magoffin, Mason, Ohio,
U.S. Small Business Administration, Owen, Powell, Pulaski, Russell,
For Physical Damage: 409 3rd Street, SW., Suite 6050, Taylor, Wayne.
Homeowners With Credit Avail- Washington, DC 20416. All other information in the original
able Elsewhere ......................... 5.500 declaration remains unchanged.
Homeowners Without Credit SUPPLEMENTARY INFORMATION: The notice
Available Elsewhere .................. 2.750 of the President’s major disaster (Catalog of Federal Domestic Assistance
Businesses With Credit Available declaration for Private Non-Profit Numbers 59002 and 59008)
Elsewhere ................................. 6.000 organizations in the State of South James E. Rivera,
Businesses Without Credit Avail- Dakota, dated 05/13/2010, is hereby Associate Administrator for Disaster
able Elsewhere ......................... 4.000 amended to include the following areas Assistance.
Non-Profit Organizations With as adversely affected by the disaster.
Credit Available Elsewhere ....... 3.625 [FR Doc. 2010–13189 Filed 6–1–10; 8:45 am]
Non-Profit Organizations Without Primary Counties: Moody. BILLING CODE 8025–01–P
Credit Available Elsewhere ....... 3.000
For Economic Injury:
All other information in the original
Businesses & Small Agricultural declaration remains unchanged. SMALL BUSINESS ADMINISTRATION
Cooperatives Without Credit (Catalog of Federal Domestic Assistance
Available Elsewhere .................. 4.000 Numbers 59002 and 59008) [Disaster Declaration #12161 and #12162]
Non-Profit Organizations Without
Credit Available Elsewhere ....... 3.000 James E. Rivera, Tennessee Disaster Number TN–00038
Associate Administrator for Disaster
The number assigned to this disaster Assistance.
Administration.
for physical damage is 12190 B and for [FR Doc. 2010–13191 Filed 6–1–10; 8:45 am]
economic injury is 12191 0. BILLING CODE 8025–01–P
SUMMARY: This is an amendment of the Administration, Processing And the NNI are seeking input on the
Presidential declaration of a major Disbursement Center, 14925 Kingsport specific objectives that should be
disaster for Public Assistance Only for Road, Fort Worth, TX 76155. included in the updated plan under
the State of Tennessee (FEMA–1909– FOR FURTHER INFORMATION CONTACT: A. each of the overarching NNI goals, and
DR), dated 05/04/2010 . Escobar, Office of Disaster Assistance, on the most likely approaches for
Incident: Severe Storms, Flooding, U.S. Small Business Administration, achieving those objectives.
Straight-Line Winds and Tornadoes. 409 3rd Street, SW., Suite 6050,
Incident Period: 04/30/2010 through DATES: The public meeting will be held
05/18/2010. on Tuesday, July 13, 2010 from 8 a.m.
Effective Date: 05/24/2010. of the President’s major disaster until 5 p.m. and on Wednesday, July 14,
Physical Loan Application Deadline 2010 from 8 a.m. until 4 p.m.
declaration for Private Non-Profit
Date: 07/06/2010.
organizations in the State of Tennessee, ADDRESSES: The public meeting will be
Economic Injury (EIDL) Loan
dated 05/04/2010, is hereby amended to held at the Hotel Palomar Arlington,
establish the incident period for this 1121 North 19th Street, Arlington, VA
disaster as beginning 04/30/2010 and 22209 (Metro stop: Rosslyn on the
applications to: U.S. Small Business continuing through 05/18/2010.
Administration, Processing And Orange and Blue lines). For directions,
All other information in the original please see http://www.HotelPalomar-
Disbursement Center, 14925 Kingsport declaration remains unchanged.
Road, Fort Worth, TX 76155. Arlington.com.
FOR FURTHER INFORMATION CONTACT: Numbers 59002 and 59008) Registration: Due to space limitations,
Alan Escobar, Office of Disaster pre-registration for the workshop is
Assistance, U.S. Small Business James E. Rivera, required. People interested in attending
Administration, 409 3rd Street, SW., Associate Administrator for Disaster the workshop should register online at
Suite 6050, Washington, DC 20416. Assistance. http://www.nano.gov/html/meetings/
SUPPLEMENTARY INFORMATION: The notice [FR Doc. 2010–13180 Filed 6–1–10; 8:45 am] strategicplan/register.html. You may
of the President’s major disaster BILLING CODE 8025–01–P also register by e-mail at
declaration for Private Non-Profit strategy@nnco.nano.gov, or by U.S.
organizations in the State of Tennessee, mail. Written registrations should be
dated 05/04/2010, is hereby amended to OFFICE OF SCIENCE AND mailed to the Strategic Planning
include the following areas as adversely TECHNOLOGY POLICY Workshop, c/o NNCO, 4201 Wilson
affected by the disaster. Blvd., Stafford II, Suite 405, Arlington,
Primary Counties: Campbell, Henry. National Nanotechnology Coordination
Office, Nanoscale Science, VA 22230. Please provide your full
All other information in the original name, title, affiliation and e-mail or
declaration remains unchanged. Engineering and Technology
Subcommittee, National Science and mailing address when registering. Please
(Catalog of Federal Domestic Assistance indicate in your registration whether
Numbers 59002 and 59008) Technology Council, Committee on
Technology; The National you are interested in presenting 3–5
James E. Rivera, Nanotechnology Initiative (NNI) minutes of public comment during the
Associate Administrator for Disaster Strategic Planning Stakeholder meeting. Registration is on a first-come,
Assistance. Workshop: Public Meeting first-served basis until the location
[FR Doc. 2010–13181 Filed 6–1–10; 8:45 am] space limits are reached. Otherwise
ACTION: Notice of public meeting. registration must be received by July 7,
SUMMARY: The National Nanotechnology
2010 at 4 p.m. EDT.
Coordination Office (NNCO), on behalf Comments may be submitted by e-
SMALL BUSINESS ADMINISTRATION mail to strategy@nnco.nano.gov or via
of the Nanoscale Science, Engineering,
[Disaster Declaration #12161 and #12162] and Technology (NSET) Subcommittee U.S. mail at the above address until July
of the Committee on Technology, 30, 2010. Information about the meeting,
Tennessee Disaster Number TN–00038 National Science and Technology including the agenda, is posted at
AGENCY: U.S. Small Business Council (NSTC), will hold a workshop http://www.nano.gov.
Administration. on July 13–14, 2010, to provide an open The main sessions will be webcast.
forum to obtain input from stakeholders
ACTION: Amendment 6. Please see http://www.nano.gov for
regarding the goals and objectives of an
more information.
SUMMARY: This is an amendment of the updated U.S. National Nanotechnology
Presidential declaration of a major Initiative (NNI) Strategic Plan that is Meeting Accommodations:
disaster for Public Assistance Only for currently under development and Individuals requiring special
the State of Tennessee (FEMA–1909– scheduled for completion by December accommodation to access this public
DR), dated 05/04/2010. 2010. Representatives of the U.S. meeting should contact Halyna
Incident: Severe Storms, Flooding, research community, industry, non- Paikoushn (443–695–6943) at least ten
Straight-Line Winds and Tornadoes. governmental organizations, and business days prior to the meeting so
Incident Period: 04/30/2010 through interested members of the general that appropriate arrangements can be
05/18/2010. public are invited to offer suggestions to made.
Effective Date: 05/18/2010. the U.S. Government interagency task

Physical Loan Application Deadline force that is drafting the new plan, FOR FURTHER INFORMATION CONTACT: For
Date: 07/06/2010. which is an update of the December information regarding this Notice,
Economic Injury (EIDL) Loan 2007 NNI Strategic Plan (see http:// please contact Diana Petreski, telephone
Application Deadline Date: 02/04/2011. www.nano.gov/ (703) 292–8626 or Halyna Paikoush,
ADDRESSES: Submit completed loan NNI_Strategic_Plan_2007.pdf). In telephone (443) 695–6943, National
applications to: U.S. Small Business particular, the agencies participating in
Nanotechnology Coordination Office. E- issued unless the Commission orders a the Plans or the Amended Plans.2 In
mail: strategy@nnco.nano.gov. hearing. Interested persons may request addition, the Company seeks to amend
a hearing by writing to the the Prior Orders to permit Participants
Rachael L. Leonard,
Commission’s Secretary and serving to pay the exercise price of options to
General Counsel, OSTP. purchase shares of the Company’s
applicant with a copy of the request,
[FR Doc. 2010–13157 Filed 6–1–10; 8:45 am] personally or by mail. Hearing requests common stock that were or will be
BILLING CODE P should be received by the Commission granted to them pursuant to the Plans or
by 5:30 p.m. on June 21, 2010, and the Amended Plans with shares of the
should be accompanied by proof of Company’s common stock already held
SECURITIES AND EXCHANGE service on applicant, in the form of an by them or pursuant to a net share
COMMISSION affidavit or, for lawyers, a certificate of settlement feature.3 The Company will
[Investment Company Act Release No. service. Hearing requests should state continue to comply with all of the terms
29287; File No. 812–13716] the nature of the writer’s interest, the and conditions of the Prior Orders.
reason for the request, and the issues 2. The Plans and the Amended Plans
Hercules Technology Growth Capital, contested. Persons who wish to be authorize the issuance to Participants of
Inc.; Notice of Application notified of a hearing may request shares of Restricted Stock, subject to
notification by writing to the certain forfeiture restrictions, and
May 26, 2010. Commission’s Secretary. options that may be subject to forfeiture
AGENCY: Securities and Exchange conditions to purchase shares of the
Commission (‘‘Commission’’). ADDRESSES: Secretary, U.S. Securities
Company’s common stock. On the date
ACTION: Notice of an application for an
and Exchange Commission, 100 F that any Restricted Stock vests, such
order under section 23(c)(3) of the Street, NE., Washington, DC 20549– vested shares of the Restricted Stock are
Investment Company Act of 1940 (the 1090. Applicant, c/o Mr. Manuel A. released to the Participant and are
‘‘Act’’) for an exemption from section Henriquez, Chief Executive Officer, available for sale or transfer.4 For
23(c) of the Act. Hercules Technology Growth Capital, Participants who are Employees, the
Inc., 400 Hamilton Avenue, Suite 310, value of the vested shares is deemed to
SUMMARY: Summary of the Application: Palo Alto, CA 94301. be wage compensation for the
Hercules Technology Growth Capital, FOR FURTHER INFORMATION CONTACT: Jean Employee. As discussed more fully in
Inc. (‘‘Company’’ or ‘‘Applicant’’) E. Minarick, Senior Counsel, at (202) the application, upon the exercise of
requests an order to amend prior orders 551–6811, or Julia Kim Gilmer, Branch certain options the amount by which the
that permit the Company to issue Chief, at (202) 551–6821 (Division of current market value of the shares of the
restricted shares of its common stock Investment Management, Office of Company’s common stock, determined
(‘‘Restricted Stock’’) and to issue stock Investment Company Regulation). as of the date of exercise, exceeds the
options to the Company’s executive exercise price will be treated as ordinary
SUPPLEMENTARY INFORMATION: The
officers, employee directors, and other income to the recipient of the option in
key employees (together, ‘‘Employees’’) following is a summary of the
application. The complete application the year of exercise. Applicant states
and non-employee directors (‘‘Non- that any compensation income
employee Directors’’) under the terms of may be obtained via the Commission’s
Web site by searching for the file recognized by an employee generally is
its employee and director compensation subject to Federal withholding for
plans, the Amended and Restated 2004 number, or the applicant using the
Company name box, at http:// income and employment tax purposes.
Equity Incentive Plan and the Amended The Amended Plans provide that each
and Restated 2006 Non-employee www.sec.gov/search/search.htm or by
grant or exercise of an Award is subject
Director Plan (each as amended and calling (202) 551–8090.
to the Participant making arrangements
restated on June 21, 2007, a ‘‘Plan,’’ and Applicant’s Representations to satisfy all applicable Federal, State,
together, the ‘‘Plans’’).1 Applicant seeks and local or other income and
to amend the Prior Orders to permit the 1. The Company is an internally
employment tax withholding
Company to engage in certain managed, non-diversified, closed-end
obligations.
transactions in connection with the investment company that has elected to 3. The Amended Plans will be subject
Plans that may constitute purchases by be regulated as a business development to approval by the Company’s board of
the Company of its own securities company (‘‘BDC’’) under the Act. The directors (‘‘Board’’) as well as the
within the meaning of section 23(c) of Company is currently permitted to (i) required majority of the Company’s
the Act. Such transactions are provided issue shares of Restricted Stock to directors with the meaning of section
for in the 2009 Amendment and certain of its Employees and Non- 57(o) of the Act. The Amended Plans
Restatement to each Plan (each, an employee Directors, and (ii) issue explicitly permit the Company to
‘‘Amended Plan,’’ and together, the options to purchase shares of the
‘‘Amended Plans’’). Company’s common stock to certain of 2 All Employees and Non-Employee Directors
its Employees and Non-employee who participate in the Plans or the Amended Plans
DATES: Filing Dates: The application was
Directors, under the terms of the Plans are referred to as ‘‘Participants.’’
filed on November 9, 2009, and 3 Net share settlement allows the Company to
in reliance on the Prior Orders.
amended on March 22, 2010, and May deliver only gain shares (i.e., shares of its common
Applicant seeks to amend the Prior stock with a current market value, as the term is
25, 2010.
Orders in order to permit the Company, defined in the Amended Plans, equal to the option
Hearing or Notification of Hearing: An
pursuant to the Amended Plans, to spread upon exercise) directly to the optionee
order granting the application will be
withhold shares of the Company’s without the need for the optionee to sell shares of
the Company’s common stock on the open market
1 Hercules Technology Growth Capital, Inc., common stock or purchase shares of the or borrow cash from third parties in order to
Investment Company Act Release Nos. 27815 (May Company’s common stock from its exercise his or her options.
2, 2007) (notice) and 27838 (May 23, 2007) (order) Employees and Non-employee Directors 4 During the restriction period (i.e., prior to the
and Hercules Technology Growth Capital, Inc., to satisfy tax withholding obligations lapse of the forfeiture restrictions), the Restricted
Investment Company Act Release Nos. 27968 (Sept. Stock may not be sold, transferred, pledged,
12, 2007) (notice) and 28011 (Oct. 10, 2007) (order)
related to the vesting of Restricted Stock hypothecated, margined, or otherwise encumbered
(collectively, the ‘‘Prior Orders’’). that were or will be granted pursuant to by a Participant.
withhold shares of the Company’s public market price for the Company’s The subject matter of the Closed
common stock or purchase shares of the common stock, the transactions would Meeting scheduled for Thursday, June 3,
Company’s common stock from the not be significantly different than could 2010 will be:
Participants to satisfy tax withholding be achieved by any stockholder selling Institution and settlement of injunctive
obligations related to the vesting of in a market transaction. actions;
Restricted Stock and the exercise of 4. Applicants submit that the Institution and settlement of
options to purchase shares of the proposed purchases do not raise administrative proceedings;
Company’s common stock granted concerns about preferential treatment of A regulatory matter regarding a financial
pursuant to the Plans or the Amended the Company’s insiders because the institution; and
Plans. The Amended Plans further Amended Plans are bona fide Other matters relating to enforcement
provide the Company’s Board with compensation plans of the type that is proceedings.
discretion to permit the Participants to common among corporations generally.
pay the exercise price of options to At times, changes in Commission
Further, the vesting schedule is priorities require alterations in the
purchase shares of the Company’s stock determined at the time of the initial
with shares of the Company’s stock scheduling of meeting items.
grant of the Restricted Stock and the For further information and to
already held by such Participants or option exercise price is determined at
pursuant to net share settlement. ascertain what, if any, matters have been
the time of the initial grant of the added, deleted or postponed, please
Applicant’s Legal Analysis options. Applicant represents that all contact:
1. Section 23(c) of the Act, which is purchases may be made only as The Office of the Secretary at (202)
made applicable to BDCs by section 63 permitted by the Amended Plans. 551–5400.
of the Act, generally prohibits a BDC Applicant argues that granting the
requested relief would be consistent Dated: May 27, 2010.
from purchasing any securities of which
with policies underlying the provisions Florence E. Harmon,
it is the issuer except in the open
of the Act permitting the use of equity Deputy Secretary.
market, pursuant to tender offers or
under other circumstances as the compensation as well as prior [FR Doc. 2010–13329 Filed 5–28–10; 4:15 pm]
Commission may permit to ensure that exemptive relief granted by the BILLING CODE 8010–01–P
the purchase is made on a basis that Commission for relief under section
does not unfairly discriminate against 23(c) of the Act.
any holders of the class or classes of For the Commission, by the Division of SECURITIES AND EXCHANGE
securities to be purchased. Applicant Investment Management, pursuant to COMMISSION
states that the withholding or purchase delegated authority.
of shares of Restricted Stock and Florence E. Harmon, [Release No. 34–62183, File No. SR–MSRB–
common stock in payment of applicable Deputy Secretary. 2009–10]
withholding tax obligations or of [FR Doc. 2010–13154 Filed 6–1–10; 8:45 am]
common stock in payment for the Self-Regulatory Organizations;
exercise price of a stock option might be Municipal Securities Rulemaking
deemed to be purchases by the Board; Notice of Filing of Amendment
Company of its own securities within No. 2 and Order Granting Accelerated
SECURITIES AND EXCHANGE
the meaning of section 23(c) and Approval of Proposed Rule Change, as
COMMISSION
therefore prohibited by the Act. Modified by Amendment Nos. 1 and 2
2. Section 23(c)(3) provides that the Sunshine Act Meeting Thereto, Relating to Additional
Commission may issue an order that Voluntary Submissions by Issuers to
would permit a BDC to repurchase its Notice is hereby given, pursuant to the MSRB’s Electronic Municipal
shares in circumstances in which the the provisions of the Government in the Market Access System (EMMA®)
repurchase is made in a manner or on Sunshine Act, Public Law 94–409, that May 26, 2010.
a basis that does not unfairly the Securities and Exchange
discriminate against any holders of the Commission will hold a Closed Meeting I. Introduction
class or classes of securities to be on Thursday, June 3, 2010 at 2 p.m. On July 14, 2009, the Municipal
purchased. Applicant states that it Commissioners, Counsel to the Securities Rulemaking Board (‘‘MSRB’’),
believes that the requested relief meets Commissioners, the Secretary to the filed with the Securities and Exchange
the standards of section 23(c)(3). Commission, and recording secretaries Commission (‘‘Commission’’ or ‘‘SEC’’),
3. Applicant states that these will attend the Closed Meeting. Certain pursuant to Section 19(b)(1) of the
purchases will be made on a basis staff members who have an interest in Securities Exchange Act of 1934
which does not unfairly discriminate the matters also may be present. (‘‘Exchange Act’’),1 and Rule 19b–4
against the stockholders of the Company
The General Counsel of the thereunder,2 a proposed rule change
because all purchases of the Company’s
Commission, or his designee, has relating to additional voluntary
stock will be at the closing price of the
certified that, in his opinion, one or submissions by issuers to the MSRB’s
common stock on the NASDAQ Global
more of the exemptions set forth in 5 Electronic Municipal Market Access
Select Market (or any other such
U.S.C. 552b(c)(3), (5), (7), (8), 9(B) and System (‘‘EMMA’’). The proposed rule
exchange on which the shares may be
(10) and 17 CFR 200.402(a)(3), (5), (7), change was published for comment in
traded in the future) on the date of the
(8), 9(ii) and (10), permit consideration the Federal Register on July 22, 2009.3
transaction. Applicant further states that
of the scheduled matters at the Closed The Commission received 27 comment
no transactions will be conducted
pursuant to the requested order on days Meeting.
1 15 U.S.C. 78s(b)(1).
where there are no reported market Commissioner Paredes, as duty 2 17 CFR 240.19b–4.
transactions involving the Company’s officer, voted to consider the items 3 See Securities Exchange Act Release No. 60315
shares. Applicant submits that because listed for the Closed Meeting in a closed (July 15, 2009), 74 FR 36294 (‘‘Original Notice’’) (the
all transactions would take place at the session. ‘‘original proposed rule change’’).
letters about the proposed rule change.4 documents other than a preliminary • An issuer’s or obligated person’s
On December 18, 2009, the MSRB filed official statement (including but not undertaking to prepare audited financial
with the Commission, pursuant to limited to notices of sale or statements pursuant to generally
Section 19(b)(1) of the Exchange Act 5 supplemental disclosures) would be accepted accounting principles
and Rule 19b-4 thereunder,6 accepted only if accompanied or (‘‘GAAP’’) as established by the
Amendment No. 1 to the proposed rule preceded by the preliminary official Governmental Accounting Standards
change. Amendment No. 1 to the statement.12 An issuer seeking to make Board (‘‘GASB’’), or pursuant to GAAP
proposed rule change was published for submissions of primary market as established by the Financial
comment in the Federal Register on documents to the EMMA primary Accounting Standards Board (‘‘FASB’’),
January 5, 2010.7 The Commission market disclosure service would use the as applicable to such issuer or obligated
received three comment letters same accounts established with respect person and as further described below
concerning Amendment No. 1.8 On May to submissions of continuing disclosure (the ‘‘voluntary GAAP undertaking’’); 14
21, 2010, the MSRB filed with the documents to the EMMA continuing • An issuer’s or obligated persons’
Commission, pursuant to Section disclosure service, subject to additional undertaking to submit annual financial
19(b)(1) of the Exchange Act 9 and Rule verification procedures to affirmatively information to EMMA within 120
19b-4 thereunder,10 Amendment No. 2 establish the account holder’s authority calendar days after the end of the fiscal
to the proposed rule change, which to act on behalf of the issuer in year or, as a transitional alternative that
clarified an aspect of the proposed rule connection with such primary market may be elected through December 31,
change relating to an issuer’s disclosure submissions. 2013, within 150 calendar days after the
undertaking and requested an additional Submissions of primary market end of the applicable fiscal year, as
three months to develop, test, and documents by issuers and their further described below (the ‘‘voluntary
implement the proposal. The text of designated agents would be accepted on annual filing undertaking’’); 15 and
Amendment No. 2 is available on the a voluntary basis if, at the time of • Uniform resource locator (URL) of
MSRB’s Web site (http://www.msrb.org), submission, they are accompanied by the issuer’s or obligated person’s
at the MSRB’s principal office, and for information necessary to accurately Internet-based investor relations or
Web site viewing and printing in the identify: (i) The category of document other repository of financial/operating
Commission’s Public Reference Room. being submitted; (ii) the issues or information.
This order provides notice of specific securities to which such Voluntary GAAP Undertaking. The
Amendment No. 2 and approves the document is related; and (iii) in the case voluntary GAAP undertaking would
proposed rule change as modified by of an advance refunding document, the consist of a voluntary undertaking by an
Amendment Nos. 1 and 2 on an specific securities being refunded issuer or obligated person, either at the
accelerated basis. pursuant thereto. The primary market time of a primary offering or at any time
documents and related indexing thereafter, that the issuer or obligated
II. Description of the Proposed Rule information would be displayed on the person will prepare its audited financial
Change, as Modified by Amendment EMMA Web portal and also would be statements in accordance with GAAP.
Nos. 1 and 2 to the Proposed Rule included in EMMA’s primary market The MSRB contemplates that State or
Change disclosure subscription service. local governments or any other entities
Preliminary Official Statements and to which GASB standards are applicable
Additional Continuing Disclosure would apply GAAP as established by
Other Primary Market Documents Submissions and Undertakings GASB and that any other entities to
The proposed rule change would The proposed rule change also would which FASB standards are applicable
amend the EMMA primary market amend the EMMA continuing disclosure would apply GAAP as established by
disclosure service to permit issuers and service to permit issuers, obligated FASB.
their designated agents to make persons and their agents to make The voluntary GAAP undertaking
voluntary submissions to the primary voluntary submissions to the continuing would assist investors and other market
market disclosure service of official disclosure service of additional participants in understanding how
statements, preliminary official categories of disclosures, as well as audited financial statements were
statements and related pre-sale information about their continuing prepared. The fact that an issuer or
documents, and advance refunding disclosure undertakings. Such obligated person has entered into a
documents (collectively, ‘‘primary additional continuing disclosures and voluntary GAAP undertaking, and the
market documents’’).11 Pre-sale related indexing information would be
4 Copies of the comment letters received by the
displayed on the EMMA Web portal and include the GFOA certificate in the submitted
also would be included in EMMA’s CAFR. According to the MSRB, EMMA already
Commission are available on the Commission’s effectively serves as a venue through which CAFRs
Internet Web site, located at http://www.sec.gov/ continuing disclosure subscription and GFOA certificates are made available to
comments/sr-msrb-2009–10/msrb200910.shtml and service. Such additional items 13 are: investors.
for Web site viewing and printing in the 14 In response to the comments received on the
Commission’s Public Reference Room at its 12 The MSRB believes that posting of such pre- original proposed rule change, the MSRB in
Washington, DC headquarters.
5 15 U.S.C. 78s(b)(1). sale documents without the related disclosure Amendment No. 1 proposes to modify the original
6 17 CFR 240.19b–4.
information provided in a preliminary official proposed rule change by permitting issuers and
statement would be inconsistent with the core obligated persons to elect either the GASB standard
7 See Securities Exchange Act Release No. 61237
disclosure purposes of EMMA. or the FASB standard for GAAP, as appropriate.
(December 23, 2009), 75 FR 485 (January 5, 2010) 13 In Amendment No. 1, the MSRB proposes to The original proposed rule change contemplated
(‘‘Amendment No. 1 Notice’’). modify the original proposed rule change by the use of the GASB standard only.
8 Exhibit A contains the citation key for all

eliminating one item of additional voluntary 15 In response to the comments received on the
comment letters received on the proposed rule submissions relating to the award of the Certificate original proposed rule change, the MSRB in
change and on Amendment No. 1. of Achievement for Excellence in Financial Amendment No. 1 proposes to modify the original
9 15 U.S.C. 78s(b)(1).
Reporting awarded by the Government Finance proposed rule change by permitting issuers and
10 17 CFR 240.19b–4.
Officers Association (‘‘GFOA’’) in connection with obligated persons to elect to undertake to submit
11 Obligated persons would be permitted to the preparation of a Comprehensive Annual annual financial information either within 120 days
submit primary market documents through the Financial Report (‘‘CAFR’’) of an issuer. The MSRB or 150 days after the end of the fiscal year. The
EMMA primary market disclosure service only if notes that CAFRs are already frequently submitted original proposed rule change contemplated a 120-
designated as an agent by the issuer. to EMMA by issuers, and in most cases the issuers day timeframe only.
standard under which audited financial would consist of a voluntary previously changed or rescinded such
statements are to be prepared, would be undertaking by an issuer or obligated undertaking.
prominently disclosed on the EMMA person, either at the time of a primary Amendment No. 2 clarifies that the
Web portal as a distinctive characteristic offering or at any time thereafter, that EMMA indicator with regard to the
of the securities to which such the issuer or obligated person, as voluntary annual filing undertaking
undertaking applies. appropriate, would submit to EMMA its would be indicative of an issuer’s or
In Amendment No. 2, the MSRB annual financial information as obligated person’s voluntary
proposes to clarify that the EMMA contemplated by Rule 15c2–12 under undertaking, entered into as a
indicator with regard to the voluntary the Act by no later than 120 calendar contractual obligation, for the benefit of
GAAP undertaking would be indicative days after the end of such issuer’s or bondholders, under a continuing
of an issuer’s or obligated person’s obligated person’s fiscal year (the ‘‘120- disclosure agreement or another
voluntary undertaking, entered into as a day undertaking’’).16 Alternatively, to contract, that it will submit to EMMA its
contractual obligation, for the benefit of and including December 31, 2013, the annual financial information as
bondholders, under a continuing EMMA continuing disclosure service contemplated under Rule 15c2–12 by no
disclosure agreement or another would provide the option for an issuer later than 120 calendar days (or 150
contract, that it will prepare its audited or obligated person to indicate its calendar days, in the case of the
financial statements in accordance with undertaking to submit to EMMA its transitional 150-day undertaking option)
GAAP, either based on GASB or FASB annual financial information by no later after the end of such issuer’s or
standards as appropriate. If the issuer or than 150 calendar days after the end of obligated person’s fiscal year. If the
obligated person later rescinds such such issuer’s or obligated person’s fiscal issuer or obligated person later modifies
undertaking through an amendment to year (the ‘‘transitional 150-day the timeframe for submitting the annual
its continuing disclosure agreement or undertaking’’).17 An issuer or obligated financial information in its continuing
other contractual arrangement, the person that has made a transitional 150- disclosure agreement or other
issuer or obligated person would be day undertaking could convert such contractual arrangement to a period
expected to remove the indicator of its election to a 120-day undertaking at any longer than contemplated by the
voluntary GAAP undertaking on time. On and after January 1, 2014, the voluntary annual filing undertaking, the
EMMA. Amendment No. 2 clarifies that transitional 150-day undertaking option issuer or obligated person would be
the voluntary EMMA GAAP indicator would no longer be available for expected to remove the indicator of its
solely could be used in situations where selection. voluntary annual filing undertaking on
the issuer has entered into an The voluntary annual filing EMMA. While Amendment No. 1 in
undertaking via a contractual obligation. undertaking would assist investors and several places clearly stated the MSRB’s
While this is consistent with a number other market participants in view that such an undertaking would be
of statements in Amendment No. 1, understanding when the annual contained in a continuing disclosure
there was a statement by the MSRB in financial information is expected to be agreement or a separate contract,18 one
Amendment No. 1 to the effect that the available in the future. The fact that an statement in Amendment No. 1 may
making of a voluntary GAAP issuer or obligated person has entered have caused some confusion.19
undertaking through EMMA by an into a voluntary annual filing Amendment No. 2 thus clarifies that the
issuer or obligated person would reflect undertaking would be prominently voluntary EMMA indicator could be
the bona fide intent of the issuer or disclosed on the EMMA Web portal as used solely in situations where an issuer
obligated person to perform as a distinctive characteristic of the had made such an undertaking as a
undertaken but would not, by itself, securities to which such undertaking contractual obligation (whether in a
necessarily create a contractual applies. A transitional 150-day continuing disclosure agreement or in a
obligation of such issuer or obligated undertaking would continue to be separate contract).
person. This statement may have caused displayed on the EMMA Web portal The MSRB would not review or
some confusion with regard to the through June 30, 2014, and would confirm the compliance of an issuer or
issuer’s need to undertake, in a automatically cease to be displayed on obligated person with its voluntary
continuing disclosure agreement or the EMMA Web portal after such date, annual filing undertaking and would
separate contract, that it will prepare its unless the issuer or obligated person has not review whether the information
audited financial statements in submitted by such entity to the EMMA
accordance with GAAP, either based on 16 According to the MSRB, under the Exchange
continuing disclosure service regarding
GASB or FASB standards as appropriate Act, smaller public reporting companies, as non- the voluntary annual filing undertaking
in order to use the voluntary EMMA accelerated filers, generally are required to file their
accurately reflects the provisions of, or
GAAP indicator. annual reports on Form 10–K with the Commission
within 90 days after the end of their fiscal year. The is included within, the continuing
The MSRB would not review whether MSRB States that the longer 120-day period disclosure agreement or other
an entity has selected the appropriate included in the voluntary annual filing undertaking contractual arrangement of such entity.
accounting standard, would not review of the proposed rule change is designed to
Investor Relation URL Posting. The
or confirm the conformity of submitted accommodate additional steps that State and local
governments often must take—under state law, proposed rule change would permit
audited financial statements to GAAP, pursuant to their own requirements, or otherwise— issuers or obligated persons to post the
and would not review whether the in completing the work necessary to prepare their URLs for their Internet-based investor
information submitted by such entity to annual financial information as contemplated under
Exchange Act Rule 15c2–12. relations or other repository of
the EMMA continuing disclosure
17 The MSRB states that the option to elect,
service regarding the voluntary GAAP
18 See, e.g., Amendment No. 1 Notice at 486.

through December 31, 2013, a transitional 150-day
undertaking accurately reflects the undertaking acknowledges that the 120-day 19 ‘‘The MSRB contemplates that the making of a
provisions of, or is included within, the undertaking may not be immediately achievable by voluntary GAAP undertaking through EMMA by an
continuing disclosure agreement or most issuers and obligated persons, and is designed issuer or obligated person would reflect the bona
other contractual arrangement of such to provide a means by which to recognize issuers fide intent of the issuer or obligated person to
and obligated persons that are taking steps toward perform as undertaken but would not, by itself,
entity. ultimately making their annual financial necessarily create a contractual obligation of such
Voluntary Annual Filing Undertaking. information available within 120 days of fiscal year issuer or obligated person.’’ See Amendment No. 1
The voluntary annual filing undertaking end in the future. Notice at 486.
financial/operating information, which Section 15B(b)(2)(C) of the Exchange comment letters responding to the
would provide investors with an Act requires, among other things, that Original Notice generally supported the
additional avenue for obtaining further the MSRB’s rules be designed to prevent proposed rule change, except that most
financial, operating or other investment- fraudulent and manipulative acts and commenters believed that the 120-day
related information about such issuer or practices, to promote just and equitable voluntary annual filing undertaking
obligated person. principles of trade, to foster cooperation would be too burdensome or not
Manner of Submission. Issuers and and coordination with persons engaged feasible.26 Several commenters,
obligated persons would indicate the in regulating, clearing, settling, including a commenter representative of
existence of a voluntary GAAP processing information with respect to, buyers of municipal securities, strongly
undertaking or voluntary annual filing and facilitating transactions in supported the voluntary annual filing
undertaking through a data input municipal securities, to remove undertaking.27 Most commenters
election on EMMA. Changes to or impediments to and perfect the supported the proposals to submit
rescissions of such voluntary mechanism of a free and open market in voluntary information to EMMA, the
contractual undertakings could also be municipal securities, and, in general, to voluntary GAAP undertaking and the
indicated through the same EMMA protect investors and the public issuer’s ability to post links to other
interface process.20 interest.24 In particular, the Commission sources of disclosure information,28
Effective Date of Proposed Rule Change finds that the proposed rule change is although some commenters raised
consistent with the Exchange Act in that concerns about various aspects of the
The MSRB originally requested an it serves to remove impediments to and proposals, suggested alternatives, or
effective date for the proposed rule help perfect the mechanisms of a free requested clarifications.29 As noted
change of a date to be announced by the and open market in municipal securities above, Amendment No. 1 proposed to
MSRB in a notice published on the and would serve to promote the add a transitional alternative of a 150-
MSRB Web site, which date shall be no statutory mandate of the MSRB to day voluntary filing deadline through
later than nine months after protect investors and the public interest. December 31, 2013, to provide a means
Commission approval of the proposed Voluntary dissemination of preliminary by which to recognize issuers and
rule change and shall be announced no official statements through EMMA, obligated persons for taking steps
later than sixty (60) days prior to the particularly if made available prior to toward voluntarily making their annual
effective date.21 In Amendment No. 2, the sale of a primary offering to the financial information available within
the MSRB requested that the underwriters, would provide timely 120 days of their fiscal year end. The
Commission approve a revised effective access by investors and other market three commenters who responded to the
date for the proposed rule change of a participants to key information useful in Amendment No. 1 Notice believed that
date to be announced by the MSRB in making an investment decision in a the voluntary 150-day transitional
a notice published on the MSRB Web manner that is consistent with the alternative also was too burdensome
site, which date shall be no later than Exchange Act. The voluntary GAAP and not achievable.30 On May 21, 2010,
one year after Commission approval of undertaking would assist investors’ the MSRB submitted Amendment No. 2
the proposed rule change and shall be understanding of how such information to the proposed rule change. The
announced no later than sixty (60) days was prepared and may provide them comment letters received regarding the
prior to the effective date. with the knowledge that the financial Original Notice and the Amendment No.
III. Discussion and Commission statements were prepared according to 1 Notice, as set forth in Amendment
Findings generally accepted accounting Nos. 1 and 2, as well as the MSRB’s
principles. The voluntary annual filing response to the comment letters, as set
The Commission has carefully forth in Amendment Nos. 1 and 2, are
considered the proposed rule change, undertaking would assist investors’
understanding regarding when such more fully discussed below.
the comment letters received, and the
MSRB’s responses to the comment information is expected to be available Preliminary Official Statements and
letters and finds that the proposed rule in the future and may encourage greater Other Primary Market Documents
change is consistent with the timeliness in the preparation and
The proposal would amend the
requirements of the Exchange Act and dissemination of municipal financial
EMMA primary market disclosure
the rules and regulations thereunder information. A URL provided by an
service to permit issuers and their
applicable to the MSRB 22 and, in issuer or obligated person would
designated agents to make voluntary
particular, the requirements of Section provide investors with an additional
submissions to the primary market
15B(b)(2)(C) of the Exchange Act 23 and avenue for obtaining further financial,
disclosure service of official statements,
the rules and regulations thereunder. operating or other investment-related
preliminary official statements and
information about the issuer or
related pre-sale documents, and
20 The Commission notes that continuing obligated person.
advance refunding documents. Pre-sale
disclosure undertakings pursuant to Rule 15c2–12
under the Exchange Act cannot be unilaterally
General Summary of Comment Letters documents other than a preliminary
rescinded or amended by either the issuer, an The Commission received 27 26 See Michigan Letter, NAHEFFA Letter,
obligated person, or by any other party. See
Securities Exchange Act Release No. 34961
comment letters responding to the Tennessee Letter, GFOA Letter I, Virginia GFOA
(November 10, 1994), 59 FR 59560 (November 17, Original Notice and three comment Letter II, GFOA Letter II, Inland Letter, Rutherford
1994); Letter from Robert L.D. Colby, Deputy letters responding to the Amendment Letter, Greendale Letter, Utah GFOA Letter,
Director, Division of Trading and Markets, No. 1 Notice. Two comment letters Brookfield Letter, Portland Letter, OMFOA Letter,
Commission, to Securities Law and Disclosure Consortium Letter, Lower Merion Letter, Rock Hill
Committee, National Association of Bond Lawyers,

concerned procedural issues with the Letter, NAST Letter, Rio Rancho Letter.
dated June 23, 1995 (Question 2). filing.25 Most of the remaining 25 27 See ICI Letter, SIFMA Letter, Hinsdale Letter.
21 See Original Notice. 28 See, e.g. VGFOA Letter II, Inland Letter,
22 In approving this proposed rule change, the 24 Id. Brookfield Letter, OMFOA Letter, Rock Hill Letter.
Commission notes that it has considered the 25 The MSRB Letter indicated that it was filing an 29 See, e.g. SIFMA Letter, NABL Letter, GFOA
proposed rule’s impact on efficiency, competition extension of time for the Commission to act. One Letter II, Consortium Letter, NAST Letter.
and capital formation. 15 U.S.C. 78c(f). commenter requested an extension of the comment 30 See GFOA Letter III, Connecticut Letter II,
23 15 U.S.C. 78o–4(b)(2)(C). period (Virginia GFOA Letter I). NAIPFA Letter.
official statement (including but not statements by issuers should be Voluntary Annual Filing Undertaking
limited to notices of sale or available for any new issue, not just The original proposed rule change
supplemental disclosures) would be those sold on a competitive basis, and would amend the EMMA continuing
accepted only if accompanied or the EMMA primary market submission disclosure service to permit issuers and
preceded by the preliminary official process would be designed to obligated persons to undertake, on a
statement. discourage duplicative submissions by voluntary basis, to submit annual
Most commenters who addressed the issuers and underwriters.39 The financial information to EMMA within
matter specifically supported the Commission agrees that it is appropriate 120 calendar days after the end of the
amendment of the EMMA primary
that postings of preliminary official fiscal year. This provision would consist
market disclosure service to allow
statements by issuers be available for of a voluntary undertaking by an issuer
voluntary submissions.31 One
offerings sold on a negotiated as well as or obligated person, either at the time of
commenter welcomed the expansion of
competitive basis, and believes that the a primary offering or at any time
the EMMA system to allow the
MSRB has adequately addressed the thereafter, that the issuer or obligated
voluntary submission of primary market
commenters’ concerns and suggestions person, as appropriate, would submit to
documents because the expansion
about duplicative filings and indexing. EMMA its annual financial information
would allow issuers that offer their
as contemplated under Rule 15c2–12
bonds through a competitive bidding Additional Continuing Disclosure
process to be able to utilize the same (including audited financials, when and
Submissions and Undertakings if available) by no later than 120
distribution channels as issuers with
offerings made on a negotiated basis.32 calendar days after the end of such
One commenter believed that all four issuer’s or obligated person’s fiscal year.
This commenter also suggested that the of the proposed additional categories to Most commenters, the majority of
usefulness of the EMMA system would the EMMA continuing disclosure whom were representative of issuers or
be enhanced by the ability to make and service (the GASB–GAAP undertaking, obligated persons, believed that the 120-
retrieve submissions identified in a the annual filing undertaking, the day deadline for voluntary annual
manner other than by CUSIP numbers, originally proposed GFOA–CAFR
such as by issuer.33 financial filings was too burdensome,
Certificate undertaking and the URL of arbitrary, unnecessary, harmful or not
Only one commenter raised concerns
about this aspect of the proposal.34 This the issuer’s or obligated person’s feasible,43 and many believed a majority
commenter recommended that the Internet-based investor relations or of issuers could not meet this
submitters of primary disclosure other repository of financial/operating deadline.44 One commenter stated that
documents continue to be restricted to information) were unnecessary because often governments now struggle to meet
underwriters and their agents except for this feature of EMMA already contains the 180-day filing deadline to meet the
submission of pre-sale documents a catch-all category that is broad enough requirements of the GFOA’s Certificate
prepared in connection with to include any of the proposed of Achievement Program, which
competitively sold municipal securities, categories.40 Several commenters promotes the preparation of
in order to avoid the submission of expressed concern that the undertakings comprehensive annual financial reports
duplicate or contradictory filings by created by the proposal could lead to (CAFRs) that go beyond the
underwriters and issuers or obligated mistaken impressions by investors requirements of GAAP.45 This
persons.35 regarding the soundness or quality of commenter believed that promoting a
The MSRB addressed these comments the disclosures that either are or are not 120-day deadline might reasonably be
in Amendment No. 1. The MSRB stated expected to persuade any number of
highlighted by these categories 41 and
that it believes that there is considerable issuers to abandon a CAFR altogether in
one commenter expressed concern that
value in providing a means for favor of a plain set of basic financial
by prominently highlighting certain statements, which, in its view, would
centralized access to preliminary official
voluntary undertakings, the MSRB likely be harmful to the quality of
statements at or prior to the time of the
could be construed to have financial reporting.46
trade and in sufficient time for an
investor to make use of the information recommended the creditworthiness of Many commenters noted that external
in coming to an investment decision.36 the municipal securities.42 The MSRB factors can inhibit the ability of issuers
The MSRB indicated that it expects to indicated in Amendment No. 1 and in to complete annual financial reporting
provide search capabilities tailored to Amendment No. 2 that it will include within 120 days, such as the need to
the types of indexing information that explanations of the nature of both the obtain financial data from multiple
would be available for preliminary voluntary annual filing undertaking and component units, the need for outside
official statements, including issuer the voluntary GAAP undertaking on the governmental or governing body
name, issue description, State, and EMMA Web portal. The Commission reviews of financial statements, required
appropriate date ranges, among other believes that users of the EMMA system investment valuations by third parties,
things.37 Submissions made by issuers will benefit from the additional receipts and adjusting entries occurring
would be noted as such on the EMMA disclosures provided by these after the close of the fiscal year,
Web portal.38 The MSRB believed that undertakings and that concerns that the conflicts with State law and a limited
postings of preliminary official additional disclosures provided on
43 See Michigan Letter, NAHEFFA Letter,
EMMA could lead to erroneous
31 See Tennessee Letter, GFOA Letter I, Virginia GFOA
Virginia GFOA Letter II, Connecticut Letter impressions can be monitored by the Letter II, GFOA Letter II, Inland Letter, Rutherford
I, ICI Letter, Brookfield Letter, OMFOA Letter, Rock
Commission through its oversight of the Letter, Greendale Letter, Utah GFOA Letter,
Hill Letter, NAST Letter, NAIPFA Letter.

32 See Connecticut Letter I. MSRB. Brookfield Letter, Portland Letter, OMFOA Letter,
Consortium Letter, Lower Merion Letter, Rock Hill
33 Id.
Letter, NAST Letter, Rio Rancho Letter.
34 See NABL Letter. 39 Id. 44 See Tennessee Letter, GFOA Letter I, GFOA
35 Id. 40 See NABL Letter. Letter II, Inland Letter, Rutherford Letter, Portland
36 See Amendment No. 1. 41 See Letter, OMFOA Letter, Consortium Letter.
NABL Letter, NAHEFFA Letter,
37 Id. Connecticut Letter I. 45 See GFOA Letter II.
38 Id. 42 See NABL Letter. 46 Id.
number of auditing firms well qualified not exist to make profits.57 This mandating over time the proposed 120-
to complete governmental audits.47 commenter also believed that there is no day schedule.69
Commenters also noted that many demand for quicker completion of A few commenters supported the 120-
issuers have limited resources to governmental audits in the day deadline or enhanced disclosure
prepare financial statements.48 Many marketplace.58 about the timeliness of issuer financial
commenters believed that the voluntary reporting.70 One commenter, the only
A number of commenters addressed
timeframe would increase costs and commenter primarily representative of
whether 120 days would be an buyers of municipal securities, was
impose significant financial and appropriate number of days for the
personnel burdens while providing particularly supportive of the proposed
voluntary timeframe.59 Some disclosure regarding an issuer’s decision
questionable benefits.49 Several commenters suggested that the 120-day
commenters observed that small issuers to undertake submitting annual
timeframe be deleted altogether.60 financial information to EMMA within
may not be able to meet this timeframe
Others noted that the 120-day standard 120 calendar days after the end of the
and that small issuers often are given
would conflict with the 180-day fiscal year, and also recommended the
low priority by their auditors as
standard used by GFOA in connection establishment of a meaningful,
compared to larger clients.50 Other
with its CAFR program,61 and some mandatory timeframe for filing financial
commenters also noted the variances
commenters stated that the 180-day reports.71 This commenter noted that
among issuers,51 including one
standard is a more appropriate disclosure of annual financial
commenter who stated that there could
be unintended adverse consequences timeframe.62 Others suggested that information currently can take
with respect to a ‘‘one-size-fits-all’’ 120- additional studies be performed before a anywhere from three months to twelve
day deadline.52 timeframe is selected.63 One commenter months, or even longer, and that the
Several commenters expressed cited difficulties in simultaneously financial status of an issuer can change
concern that pressure to meet the meeting GFOA’s CAFR timeframe and materially during the course of a year—
voluntary deadline could cause State law requirements.64 Two a fact that it observed has been
professional staff and their auditors to commenters recommended that issuers highlighted by the recent credit crisis.72
certify that they are making filings in This commenter recognized that
produce less accurate information that
compliance with their continuing establishing a specific timeframe for
would reduce the quality of financial
disclosure agreements, without a filing financial reports after the end of
reporting and auditing standards 53 and
specific deadline.65 the fiscal year would necessitate a
would lead to greater reliance on
significant shift in current practices
estimated financial data.54 Other Another commenter was concerned
employed by municipal issuers, but
commenters expressed concern that the that issuers might engage in deceptive believed that such a change is not only
120-day deadline would encourage practices by highlighting an warranted but also long overdue.
governments to engage the services of undertaking, but then failing to comply Another commenter stated that ‘‘the
auditing firms that are not well qualified with it.66 This commenter noted that proposed 120 day period for submitting
in governmental accounting and there appears to be nothing to preclude annual financial information is a good
auditing standards.55 the issuer from effectively advertising start toward meeting the objective of
Several commenters distinguished the the undertaking on EMMA irrespective making financial statements of
municipal market from the corporate of actual compliance.67 Others were governments timely and useful in the
market; indicated that State and local concerned that a decision not to make public securities market.’’ 73 A third
governments surpass their private sector an undertaking would create prejudicial commenter that supported this part of
counterparts in financial reporting and unjustified marketplace distinctions the proposal remarked that municipal
transparency; or stated that financial or ‘‘a figurative black eye in the mind of securities issuers should have the same
reporting goals applicable to the investors.’’ 68 mandatory reporting requirement for
corporate market should not apply to timely financials as public
A number of commenters expressed
the municipal market.56 One commenter corporations.74
stated that governments should not be concern that the voluntary annual filing
undertaking likely would become a de In light of the commenters’
under the same pressure to provide widespread concerns regarding the
instantaneous and quarterly financial facto standard that issuers would feel
attainability of the 120-day timeframe,
information because governments do compelled to meet, or that the voluntary
the MSRB in Amendment No. 1
standard would set the stage for
provided a transitional option for
47 See NAHEFFA Letter, Virginia GFOA Letter II,
57 See
issuers and obligated persons to elect a
GFOA Letter II, Inland Letter, Utah GFOA Letter, Rock Hill Letter.
58 Id.
150-day undertaking as an alternative to
Portland Letter, OMFOA Letter, Consortium Letter,
Rock Hill Letter, NAST Letter, Rio Rancho Letter, 59 See Utah GFOA Letter, Portland Letter,
the 120-day undertaking. This
GFOA Letter III, Connecticut Letter II. OMFOA Letter, Tennessee Letter, Virginia GFOA alternative election is intended to
48 See Inland Letter, Greendale Letter, Utah GFOA Letter II, Inland Letter, OMFOA Letter, Consortium provide issuers and obligated persons
Letter. Letter, NAST Letter, Michigan Letter, Inland Letter, seeking to make the voluntary annual
49 See Virginia GFOA Letter II, GFOA Letter II, Rutherford Letter. filing undertaking, but that are not
60 See Utah GFOA Letter, Portland Letter,
Portland Letter, OMFOA Letter. currently able to meet a 120-day
50 See Brookfield Letter, Greendale Letter, Inland OMFOA Letter.
Letter, OMFOA Letter, Portland Letter, Rock Hill 61 See Tennessee Letter, Virginia GFOA Letter II, timeframe, with a reasonable
Letter, and Consortium Letter. Inland Letter, OMFOA Letter, Consortium Letter, opportunity to overcome existing
51 See GFOA Letter II, NAHEFFA Letter. NAST Letter.
52 See GFOA Letter II. 62 See Michigan Letter, Inland Letter, Rutherford 69 See Brookfield Letter, Connecticut Letter I,
53 See Inland Letter, Lower Merion Letter, Letter, Utah GFOA Letter, Portland Letter. Inland Letter, Consortium Letter, NAHEFFA Letter,
63 See Tennessee Letter, Virginia GFOA Letter II. NAST Letter, Connecticut Letter II, NAIPFA Letter.
Consortium Letter.
54 See GFOA Letter II, OMFOA Letter, 64 See Virginia GFOA Letter II. 70 See ICI Letter, SIFMA Letter, Hinsdale Letter.
65 See GFOA Letter II, NAHEFFA Letter. 71 See ICI Letter.
Consortium Letter.
55 See GFOA Letter I, Consortium Letter. 66 See NAHEFFA Letter. 72 Id.
56 See Rock Hill Letter, Consortium Letter, Inland 67 Id. 73 See Hinsdale Letter.
Letter, GFOA Letter II. 68 See NAHEFFA Letter, Inland Letter. 74 See E-Certus Letter.
barriers to more rapid dissemination of Notice believed that the voluntary 150- the proposed rule change, as amended,
financial information in an orderly and day transitional alternative also was too is appropriate and was arrived at on a
cost-effective manner. burdensome and not achievable.76 Two rational basis.83
The MSRB accordingly modified the of the commenters reiterated and According to the MSRB, issuers that
original proposed rule change to allow expanded upon comments they had seek to make their financial information
the election, through December 31, made previously with respect to the available under the voluntary annual
2013, of a transitional 150-day original proposed rule change.77 The filing undertaking also would be
alternative, which election would be third commenter stated that the bringing the timing of their disclosures
displayed on the EMMA Web portal established GASB and FASB into closer conformity with the
through June 30, 2014, unless the issuer requirements for preparing the audited timeframes that investors in the
or obligated person changed or statements are a significant impediment registered securities market have come
rescinded such undertaking. On and to developing statements in less than to rely upon.84 The MSRB noted that
after January 1, 2014, the transitional 180 days.78 recent experiences of issuers who have
150-day undertaking option no longer The MSRB addressed the issues raised begun to issue Build America Bonds
would be available. An issuer or by the comment letters on the original that are marketed at least in part to
obligated person that made a proposed rule change in Amendment investors who typically did not
transitional 150-day undertaking could No. 1, and addressed the comments on purchase municipal securities suggest
convert such election to a 120-day the original proposed rule change as that important benefits both to investors
undertaking at any time. An issuer or well as the comments on the and issuers may be realized from
obligated person that believed that it is Amendment No. 1 Notice in moving toward a more universal
able to meet the 120-day timeframe Amendment No. 2. disclosure timeframe.85
could make the 120-day undertaking In Amendment No. 2, the MSRB The MSRB in Amendment No. 2 also
immediately upon the effectiveness of stated that the determination to recognized the voluntary nature of the
the proposed rule change. The fact that establish 120 days as the timeframe in annual filing undertaking in responding
an issuer or obligated person entered the original proposed rule change was to concerns that the undertaking would
into such an undertaking, including the not arbitrary.79 The MSRB indicated be impracticable or impossible and does
timeframe elected, would be that, under the Federal securities laws, not take into account variances in the
prominently disclosed on the EMMA smaller public reporting companies, as size and complexities of issuers. The
Web portal as a distinctive characteristic non-accelerated filers, generally are MSRB stated that it is aware that the
of the securities to which such required to file their annual reports on nature of municipal issuers varies
undertaking applies. The EMMA Web Form 10–K with the Commission within widely and that these significant
portal would not include information 90 days after the end of their fiscal differences may in fact make it more
regarding the availability or existence of year.80 difficult for some types of issuers, or
the voluntary annual filing undertaking The MSRB stated that, after issuers in certain States, or issuers
in those cases where an issuer or consulting with Commission staff, it facing certain sets of facts and
obligated person did not make a believed that providing issuers and circumstances, to make and comply
voluntary annual filing undertaking. obligated persons with 120 days to with the voluntary undertaking. In this
The MSRB reiterated in Amendment voluntarily submit annual financial regard, the MSRB noted that some
No. 1 that the voluntary annual filing information for purposes of the issuers may be separate and distinct
undertaking would in fact be voluntary. undertaking would provide an ample units in governmental structures that
The MSRB would include an timeframe to accommodate the require information from third parties to
explanation of the nature of the additional steps that State and local complete their audited financial
voluntary annual filing undertaking on governments often must take—under statements, and such third parties may
the EMMA Web portal. In particular, the State law, pursuant to their own operate under timeframes that differ
MSRB would disclose that the voluntary requirements, or otherwise—in from the issuers’ own fiscal year cycles,
annual filing undertaking is voluntary; completing the work necessary to thereby creating additional barriers to
is solely indicative of the timing by prepare their annual financial meeting the timeframe of the voluntary
which the annual financial information information as contemplated under Rule undertaking.
is intended to be made available; and is 15c2–12.81 The MSRB noted that the Given this complex variety of issuer
not indicative of the accuracy or alternative 150-day timeframe was types, the MSRB believed that a single
completeness of the annual financial added in Amendment No. 1 to provide consistent voluntary submission
information or of the financial health of additional time for undertaking such timeframe available to all issuers
the issuer or obligated person. Further, steps during a transitional period in provides an appropriately uniform
the MSRB would disclose that a response to concerns that, as State and initial target under the voluntary annual
decision by an issuer or obligated local governments currently prepare filing undertaking. The MSRB did not
person not to make such an undertaking their financial information, the attempt to parse the essential structure
would not raise a negative inference additional 30 days beyond the Form 10– of the marketplace to develop numerous
with regard to the accuracy or K timeframe for non-accelerated filers separate timeframes based on very
completeness of the issuer’s or obligated would not be sufficient for many limited information. After a period of
person’s annual financial information or municipal issuers.82 The MSRB stated experience with the uniform timeframe
of the financial health of the issuer or that the timeframe provided for under of the undertaking, the MSRB advised
obligated person. that it could revisit the question of
As previously noted, the Commission 76 See GFOA Letter III, Connecticut Letter II,
whether multiple timeframes for
received three comment letters in NAIPFA Letter.
77 See GFOA Letter III, Connecticut Letter II. different types of issuers would be
response to the Amendment No. 1 78 See NAIPFA Letter. appropriate.
Notice.75 The three commenters 79 See Amendment No. 2.
responding to the Amendment No. 1 80 Id. 83 Id.
81 Id. 84 Id.
75 See Exhibit A. 82 Id. 85 Id.
In Amendment No. 2, the MSRB also believe that the undertaking would have undertaking.101 The Commission notes
addressed concerns of some such a negative effect.95 that it has approved the MSRB’s filing
commenters that the existence of the In discussing financial disclosure to allow these displays on EMMA at the
annual filing undertaking could create standards for municipal securities, the same time it is approving the instant
negative perceptions of issuers that do MSRB noted that in the past, any de proposed rule change, and believes that
not make the voluntary undertaking and facto standards have been the result of the enhancements to EMMA relating to
thereby create a two-tiered market.86 slow evolution in the market through underwriters’ requirements will address
The MSRB stated that, in its view, the natural economic forces or the result of the commenters’ recommendations
decision by an issuer not to submit collaboration among the various concerning issuers’ compliance with
annual financial information under the interested parties, such as with the existing undertakings regarding
voluntary annual filing undertaking evolving de facto standard for quarterly submission of financial information.102
would not, by itself, cause an information provided by many hospital In response to some commenters’
inappropriate negative perception of borrowers arising from the collaborative suggestion that the timeframe be 180
such issuer.87 According to the MSRB, work of issuers, obligated persons and days, the MSRB noted that the
the EMMA portal would provide clear investors in recent years.96 The MSRB timeframe set forth in the voluntary
disclosure of the purpose of the believed that the single consistent undertaking should be shorter than
voluntary undertaking and that the voluntary submission timeframe under other timeframes currently in use, such
undertaking should not be viewed as the voluntary annual filing undertaking, as the GFOA CAFR certificate program’s
indicative of the accuracy or available to all issuers with the full 180-day timeframe, and that the
completeness of financial information or knowledge that only some issuers transitional 150-day timeframe included
of the financial health of the issuer.88 would be able to make the voluntary in Amendment No. 1 would provide a
Thus, the MSRB noted, the voluntary undertaking at the current time, would mid-point between the original 120-day
undertaking as disclosed on the EMMA serve to provide an appropriately timeframe of the voluntary undertaking
portal would be an accurate uniform initial target for those market and the GFOA’s 180-day timeframe.103
representation of an issuer’s affirmative participants seeking to work toward The Commission believes that the
undertaking as to the timing of its more timely availability of financial MSRB has adequately addressed the
disclosure, and nothing more.89 The information in the marketplace.97 concerns of commenters with respect to
MSRB stated that no indicator would be In response to some commenters’ the voluntary annual filing undertaking.
provided for issuers that choose not to recommendation that EMMA should Importantly, the Commission notes that
make the voluntary undertaking.90 allow issuers to specify a specific date this undertaking is voluntary and will
The MSRB did not believe that there by which annual financial information provide investors, as well as broker-
is any significant risk of a tiered market is expected to be submitted and should dealers, analysts and other market
perception developing in the near future indicate whether the issuer was in professionals, with financial
based solely on the voluntary compliance with such deadline, the information about municipal securities
undertaking.91 The MSRB indicated that MSRB noted that it has filed a separate within a timeframe voluntarily agreed to
it would make the appropriate EMMA proposed rule change with the by the issuer. The Commission is
portal disclosures regarding the limited Commission that addresses these sensitive to the great variety of
nature of the undertaking to help concerns.98 The MSRB remarked that municipal issuers and obligated persons
minimize the possibility that market that filing would require underwriters, and the many fiscal and other pressures
participants would place undue in connection with new issues that they that they face, but is also sensitive to the
emphasis on a single factor when underwrite, to provide to EMMA concerns of investors and other
making an investment decision.92 The information regarding the deadline for participants in our capital markets, who
MSRB opined that the marketplace submitting annual financial information need timely information to make
would correctly view the voluntary by issuers to EMMA pursuant to their informed decisions. The Commission
undertaking as an initial step in a continuing disclosure agreements.99 The believes that investors, broker-dealers,
process toward more rapid MSRB noted that this deadline would be analysts and other users of the EMMA
dissemination of disclosure information displayed on the EMMA portal in close system will greatly benefit from the
to the public.93 proximity to information showing the ability to easily identify those issuers
The MSRB did not believe that the timing of actual submissions made by and obligated persons that have
voluntary annual filing undertaking issuers of their annual financial committed to providing financial
would create an excessive burden on information, thus achieving the information by a specific deadline. The
issuers or that issuers would reduce the objectives set out by the commenters.100 120- and 150-day timeframes are
quality of disclosures in order to meet According to the MSRB, information voluntary and will assist investors in
the timeframe.94 The MSRB remarked regarding the voluntary undertaking making investment decisions and in
that the existence of this optional also would be displayed in close monitoring their securities portfolios;
undertaking is not intended to create an proximity to information showing the will reward those issuers and obligated
inference that issuers should sacrifice timing of actual submissions made by persons that are able to achieve greater
the quality of the information provided issuers, thus providing a method for timeliness in financial reporting; and
in their annual filings in order to meet investors to check on the issuer’s may encourage greater timeliness by
a specific timeframe, and it did not performance in connection with the other issuers and obligated persons over
86 See
time as they work to surmount the
Amendment No. 2. 95 Id.
obstacles that currently prevent them
87 Id. 96 Id.
88 Id. 97 Id.
from preparing and disseminating
89 Id. 98 Id. See Securities Exchange Act Release Nos. financial information within the
90 Id.
60314 (July 15, 2009), 74 FR 36300 (July 22, 2009)
91 Id. and 61238 (December 23, 2009), 75 FR 492 (January 101 Id.
92 Id. 5, 2010) (File No. SR–MSRB–2009–09). 102 See Securities Exchange Act Release No.
93 Id. 99 See Amendment No. 2. 62182 (May 26, 2010) (SR–MSRB–2009–09).
94 Id. 100 Id. 103 See Amendment No. 2.
proposed timeframes and without undertaking and stated that use of GASB issuers and obligated persons to include
sacrificing the quality of their reporting. GAAP may not always be clear; because additional information relating to each
it prepares its information on a modified such item that they may deem
Voluntary GAAP Undertaking
GAAP basis, it would probably not be appropriate with respect thereto for
The original proposed rule change able to make this undertaking.110 The public dissemination.118 The MSRB
would amend the EMMA continuing second commenter did not support the believed that this feature should provide
disclosure service to permit issuers and amended proposal to have a field that such issuers and obligated persons with
obligated persons to undertake, on a references ‘‘a particular standard-setting adequate opportunity to disclose
voluntary basis, to prepare audited body’’ and noted that ‘‘it is redundant for appropriate information to investors.119
financial statements pursuant to GAAP the MSRB to also include the body in The Commission believes that the
as established by GASB. This would which GAAP standards are proposed voluntary GAAP undertaking
consist of a voluntary undertaking by an established.’’ 111 The third commenter will assist investors and other users of
issuer or obligated person (in the case of agreed with the provision to have the EMMA system in determining how
an obligated person that is a State or issuers and obligated persons designate financial statements are prepared. The
local governmental entity), either at the whether their audited financials are uniformity provided by audited
time of a primary offering or at any time prepared pursuant to GAAP but not the financial statements that are prepared
thereafter, that the issuer or obligated use of GASB standards because some by issuers and obligated persons
person would prepare its audited issuers may be required to use other pursuant to GAAP in accordance with
financial statements in accordance with GAAP standards.112 GASB or FASB standards will reduce
GAAP as established by GASB. The MSRB stated that permitting
Commenters generally supported the the need by investors to reconcile the
investors to understand the standards use of disparate accounting principles.
voluntary ‘‘GAAP as established by applied to the preparation of an issuer’s
GASB’’ undertaking, although several The features of the EMMA continuing
or obligated person’s financial disclosure service permitting issuers
commenters noted that certain issuers
statements would be valuable.113 The and obligated persons to include
do not use GASB accounting standards
MSRB indicated that the fact that an additional information should address
and suggested alternative
issuer or obligated person has entered commenters’ concerns about special
recommendations.104 Two commenters
into a voluntary GAAP undertaking, situations that require clarification.
recommended that the proposal not
including whether the financial
include the accounting standard setting Investor Relation URL Posting
statements are to be prepared pursuant
body (indicating only compliance with
to GASB or FASB standards, would be The proposal would amend the
GAAP),105 and one commenter
prominently disclosed on the EMMA EMMA continuing disclosure service to
recommended the inclusion of the
accounting standard setting body, GASB Web portal as a distinctive characteristic permit issuers and obligated persons to
or any other standard setting body, in of the securities to which such post the URLs for their Internet-based
order for the reader of the financial undertaking applies.114 The MSRB investor relations or other repository of
statements to distinguish which noted that it would include an financial/operating information. The
standards are being followed.106 explanation of the nature of the URL of an issuer’s or obligated person’s
Another commenter expressed concern voluntary GAAP undertaking on the investor relations or other repository of
that an issuer that does not elect a EMMA Web portal.115 In particular, the financial/operating information would
voluntary GAAP undertaking would be MSRB would disclose that the voluntary be entered through a text/data input
stigmatized as less creditworthy even GAAP undertaking is voluntary; is field on EMMA and no document would
where it follows other standards, solely indicative of the accounting be required to be submitted to EMMA.
including statutory standards, and noted standards that the issuer or obligated Commenters generally supported the
that financial statements are person intends to use in preparing its proposal to permit issuers and obligated
accompanied by a statement of the financial statements; and is not persons to provide a hyperlink to their
accounting principles applied.107 In indicative of the accuracy or investor relations or similar Web
Amendment No. 1, the MSRB agreed completeness of the financial statements page.120 One commenter thought that
with commenters that many obligated or of the financial health of the issuer this field would provide investors with
persons may be subject to FASB or obligated person.116 Further, the valuable information and would likely
standards rather than GASB MSRB advised that it would disclose be the most useful voluntary field
standards.108 The MSRB therefore that a decision by an issuer or obligated proposed by the MSRB.121 Another
modified the voluntary GAAP person not to make such an undertaking commenter noted that this hyperlink
undertaking to permit the submitter to does not raise a negative inference in may be more useful to the general
select either the GASB or FASB regard to the accuracy or completeness public than CUSIP-based EMMA filings
standards for GAAP. of its financial statements or of the for general financial information that is
As noted above, the Commission financial health of the issuer or not issue-specific.122
received three comment letters in obligated person.117 According to the
One commenter requested that issuers
response to the Amendment No. 1 MSRB, each of the undertakings
be given an ability to correct or
Notice. One of these commenters pursuant to the proposal, including the
withdraw URLs to ensure that links are
suggested the allowance of modified voluntary GAAP undertaking, would
accurate, recommended the allowance
GAAP.109 This commenter questioned permit a free text input field permitting
of multiple links, and requested
the usefulness of the GASB GAAP guidance on the responsibilities of
110 See Connecticut Letter I, Connecticut Letter II.

104 See 111 See GFOA Letter III. issuers with regard to the posting of
NAHEFFA Letter, GFOA Letter II,
112 See NAIPFA Letter.
Connecticut Letter I.
105 See GFOA Letter II, Consortium Letter. 113 See Amendment No. 2. 118 See Amendment No. 2.
106 See NAST Letter. 114 Id. 119 Id.
107 See NABL Letter. 115 See Amendment No. 1. 120 See,e.g., Connecticut Letter I, GFOA Letter III.
108 See Amendment No. 1. 116 Id. 121 See GFOA Letter III.
109 See Connecticut Letter II. 117 Id. 122 See Connecticut Letter I.
hyperlinks on EMMA.123 Another submitters of CAFRs to indicate that the filing indicates that the term
commenter asked about the role and their submitted audited financial ‘‘designating underwriter’’ has been
obligations of dealers if the proposal is statements are CAFRs.129 According to changed to ‘‘designating party’’
adopted; expressed liability concerns the MSRB, this document title/ specifically to permit an issuer to make
regarding the use of a URL in municipal subcategory would be displayed on the such designation.136 In addition, in
securities offering documents and EMMA Web portal.130 Amendment No. 2 the MSRB noted that
EMMA submissions during the GFOA, in commenting on the it currently is in the early stages of
underwriting period of a primary Amendment No. 1 Notice, developing a process to receive
offering; and suggested a limit on the recommended that this voluntary field electronic feeds of municipal securities
use of the URL during the underwriting be included within EMMA, noting that credit rating information from
period of a primary offering.124 such a field is useful to investors as it Nationally Recognized Statistical Rating
The MSRB noted that issuers and tells them which governments have Organizations for purposes of displaying
obligated persons would be able to make exceptional reporting standards.131 In on the EMMA portal.137
appropriate changes to the URLs posted Amendment No. 2, the MSRB stated that Another commenter recommended
through EMMA.125 The hyperlinks the current channels for disseminating that the Commission maintain close
would be posted in a manner designed CAFRs and the related GFOA certificate oversight of EMMA and revisit this
to segregate access to the URL from are adequate but that it may consider matter in two to three years to
postings of official statements for new further action in this area in the determine whether the MSRB system is
issues.126 The MSRB intends to provide future.132 The Commission believes that meeting expectations and whether the
flexibility to issuers and obligated the MSRB’s decision to eliminate the needs of all market participants are
persons regarding the posting of GFOA certificate field is reasonable being addressed.138 The Commission
appropriate links, including multiple given that GFOA certificates are notes that, because the MSRB is a self-
links, and would provide the ability to typically submitted to EMMA with regulatory organization (‘‘SRO’’), the
correct or withdraw URLs to ensure that CAFRs. Commission has, and exercises,
links are accurate.127 oversight authority over the MSRB. The
The Commission believes that a URL Other General Comments MSRB must file proposed rule changes
provided by an issuer or obligated One commenter recommended that with the Commission under Section
person would provide investors, broker- the Commission defer action on the 19(b) of the Exchange Act, including
dealers, analysts and others with an MSRB’s proposal to add additional any changes to the EMMA system and
important additional means to obtain voluntary submissions by issuers until any fees relating to the EMMA system.
further financial operating or other after the proposed Rule 15c2–12 In addition, the MSRB is subject to the
investment-related information about amendments are considered and recordkeeping requirements of 17(a) of
such issuer or obligated person. adopted in order to accommodate an the Exchange Act 139 and is subject to
orderly integration of revised Rule the Commission’s examination authority
Elimination of Proposed GFOA–CAFR under Section 17(b) of the Exchange
15c2–12 submissions and EMMA
Certificate Act.140 Through the Commission’s
voluntary submissions.133 The
The original proposed rule change Commission notes that the amendments recordkeeping requirements and
would have amended the EMMA to Rule 15c2–12 are being adopted at the examination and rule filing processes,
continuing disclosure service to permit same time that it approves the instant the Commission oversees the MSRB and
issuers to submit the Certificate of proposed rule change.134 will be able to ascertain whether the
Achievement for Excellence in One commenter on the Amendment MSRB is implementing EMMA
Financial Reporting awarded by GFOA No. 1 Notice provided a series of appropriately and meeting EMMA’s
in connection with the preparation of its comments and suggestions relating to stated objectives, as well as whether it
CAFR. various elements of the proposal.135 is complying with its legal obligations
In Amendment No. 1, the MSRB These included a suggested edit in the under the Exchange Act.
stated that it determined not to proceed facility language for the EMMA primary With regard to all other issues raised
with this element of the proposal. The market disclosure service regarding by the commenters, the Commission
MSRB noted that CAFRs already are issuers being able to designate an agent believes that the MSRB has adequately
frequently submitted to EMMA by for purposes of making primary market addressed the commenters’ concerns.
issuers as the audited financial submissions; support for voluntary IV. Order Granting Accelerated
statements element of their annual submission of information on swaps, Approval of Proposed Rule Change
financial information filings, and in swaptions and variable rate debt; and
most cases the issuers include the Pursuant to Section 19(b)(2) of the
encouragement for the MSRB to pursue Act,141 the Commission may not
GFOA certificate in the submitted submission of ratings from rating
CAFR.128 The MSRB stated that as part approve any proposed rule change, or
agencies. In Amendment No. 2, the
of its routine EMMA update and amendment thereto, prior to the 30th
MSRB indicated that, with regard to the
maintenance process, it expected to day after the date of publication of
suggestion regarding facility language,
modify the input process for all notice of the filing thereof, unless the
the proposed EMMA revisions
continuing disclosure submissions to Commission finds good cause for so
contained in Amendment No. 1
permit issuers and obligated persons to doing and publishes its reasons for so
appropriately ensure that an issuer can
input specific document titles and/or designate an agent and remarked that 136 See Amendment No. 2.
subcategories, which would permit 137 Id. The Commission notes that, on May 20,
129 Id.
2010, the MSRB filed a proposed rule change
123 See GFOA Letter II, GFOA Letter III. 130 Id.
relating to the posting of credit rating information
124 See SIFMA Letter. 131 See GFOA Letter III. on its EMMA system.
125 See Amendment No. 1. 132 See Amendment No. 2. 138 See Connecticut Letter I.
126 Id. 133 See NABL Letter. 139 15 U.S.C. 78q(a).
127 See Amendment No. 2. 134 See Press Release 2010–85 (May 26, 2010). 140 15 U.S.C. 78q(b).
128 See Amendment No. 1. 135 See NAIPFA Letter. 141 15 U.S.C. 78s(b)(2).
finding. The Commission hereby finds Internet Web site (http://www.sec.gov/ For the Commission, by the Division of
good cause for approving the proposed rules/sro.shtml). Copies of the Trading and Markets, pursuant to delegated
rule change, as modified by Amendment submission, all subsequent authority.148
Nos. 1 and 2, before the 30th day after amendments, all written statements Florence E. Harmon,
the date of publication of notice of filing with respect to the proposed rule Deputy Secretary.
thereof in the Federal Register. The change that are filed with the Exhibit A
Commission notes that the original Commission, and all written
proposed rule change and Amendment Key to Comment Letters Cited in Approval
communications relating to the Order Relating to Additional Voluntary
No. 1 were published in the Federal proposed rule change between the Submissions by Issuers to the MSRB’s
Register on July 15, 2009 142 and Commission and any person, other than Electronic Municipal Market Access System
January 5, 2010,143 respectively. The those that may be withheld from the (EMMA®)
Commission does not believe that public in accordance with the File No. SR–MSRB–2009–10
Amendment No. 2 significantly alters
provisions of 5 U.S.C. 552, will be Comments Relating to Original Proposed
the proposal. In Amendment No. 2, the
available for Web site viewing and Rule Change
MSRB requested an additional three
months to develop, test, and implement printing in the Commission’s Public 1. Ernesto A. Lanza, General Counsel,
the proposal and clarified that, Reference Room, 100 F Street, NE., MSRB, dated August 6, 2009 (‘‘MSRB
consistent with statements in Washington, DC 20549, on official Letter’’).
business days between the hours of 10 2. Robert J. Kleine, Michigan State
Amendment No. 1, the voluntary
a.m. and 3 p.m. Copies of such filing Treasurer, dated August 10, 2009 (‘‘Michigan
undertakings to be submitted to the Letter’’).
MSRB’s EMMA continuing disclosure also will be available for inspection and
3. Memorandum from the Office of the
service must be entered into as copying at the principal office of the Chairman regarding a meeting with
contractual undertakings for the benefit MSRB. All comments received will be representatives of Division of Investment
of bondholders. The Commission posted without change; the Commission Management, Division of Trading and
believes that these revisions are does not edit personal identifying Markets, and the Government Finance
consistent with the proposal’s purpose information from submissions. You Officers Association, dated August 11, 2009
and raise no new significant issues. should submit only information that (‘‘August 11th Memorandum’’).
4. Robert Donovan, Executive Director,
Accordingly, pursuant to Section you wish to make available publicly. All Rhode Island Health and Educational
19(b)(2) of the Act,144 the Commission submissions should refer to File Building Corporation, Chair, National
finds good cause to approve the Number SR–MSRB–2009–10 and should Association of Health and Educational
proposed rule change, as amended, on be submitted on or before June 23, 2010. Facilities Finance Authorities (‘‘NAHEFFA’’)
an accelerated basis. Advocacy Committee, dated August 12, 2009
VII. Conclusion (‘‘NAHEFFA Letter’’).
V. Solicitation of Comments 5. Jan I. Sylvis, Chief of Accounts, State of
Interested persons are invited to For the foregoing reasons, the Tennessee, dated August 12, 2009
submit written data, views, and Commission finds that the proposed (‘‘Tennessee Letter’’).
arguments concerning the foregoing, rule change, as amended, is consistent 6. Leon J. Bijou, Managing Director and
including whether the proposed rule with the Exchange Act and the rules and Associate General Counsel, Securities
regulations thereunder applicable to the Industry and Financial Markets Association
change, as amended, is consistent with
(‘‘SIFMA’’), dated August 12, 2009 (‘‘SIFMA
the Exchange Act. Comments may be MSRB 145 and, in particular, the
Letter’’).
submitted by any of the following requirements of Section 15B(b)(2)(C) of 7. Susan Gaffney, Director, Federal Liaison
methods: the Exchange Act 146 and the rules and Center, Government Finance Officers
regulations thereunder. The proposal Association (‘‘GFOA’’), dated August 12, 2009
Electronic Comments
will become effective on a date to be (‘‘GFOA Letter I’’).
• Use the Commission’s Internet announced by the MSRB in a notice 8. John Wallingford, Executive Board
comment form (http://www.sec.gov/ published on the MSRB Web site, which Member, Virginia Government Finance
rules/sro.shtml); or Officers Association (‘‘Virginia GFOA’’),
date shall be no later than one year after
• Send an e-mail to rule- dated August 12, 2009 (‘‘Virginia GFOA
Commission approval of the proposed Letter I’’).
comments@sec.gov. Please include File
rule change and shall be announced no 9. William A. Holby, President, The
Number SR–MSRB–2009–10 on the
later than sixty (60) days prior to the National Association of Bond Lawyers
subject line. (‘‘NABL’’), dated August 13, 2009 (‘‘NABL
effective date.
Paper Comments Letter’’).
It is therefore ordered, pursuant to 10. Marycarol C. White, CPA, CPFO,
• Send paper comments in triplicate Section 19(b)(2) of the Exchange Act,147 President, Virginia Government Finance
to Secretary, Securities and Exchange that the proposed rule change (SR– Officers’ Association (‘‘Virginia GFOA’’),
Commission, 100 F Street, NE., MSRB–2009–10), as amended, be, and it dated August 14, 2009 (‘‘Virginia GFOA
Washington, DC 20549–1090. hereby is, approved. Letter II’’).
All submissions should refer to File 11. Jeffrey L. Esser, Executive Director and
Number SR–MSRB–2009–10. This file CEO, The Government Finance Officers
number should be included on the Association (‘‘GFOA’’), dated August 17, 2009
(‘‘GFOA Letter II’’).
subject line if e-mail is used. To help the 12. Dean Martin, Chief Financial Officer,
Commission process and review your
Inland Empire Utilities Agency, dated August

comments more efficiently, please use 18, 2009 (‘‘Inland Letter’’).
only one method. The Commission will 145 In approving this proposed rule change, the 13. Lisa Nolen, CPA, CGFM, Rutherford
post all comments on the Commission’s Commission notes that it has considered the County Finance Director, Murfreesboro,
proposed rule’s impact on efficiency, competition Tennessee, dated August 19, 2009
142 See Release No. 34–60315, supra note 3. and capital formation. 15 U.S.C. 78c(f). (‘‘Rutherford Letter’’).
143 See 146 15 U.S.C. 78o–4(b)(2)(C).
Release No. 34–61237, supra note 7.
144 15 U.S.C. 78s(b)(2). 147 15 U.S.C. 78s(b)(2). 148 17 CFR 200.30–3(a)(12).
14. Kathryn Kasza, CMTW, Clerk- dated September 23, 2009 (‘‘Rock Hill proposed rule change from interested
Treasurer, Village of Greendale, Greendale, Letter’’). persons.
Wisconsin, dated August 19, 2009 27. Jeb Spaulding, President, National
(‘‘Greendale Letter’’). Association of State Treasurers (‘‘NAST’’), I. Self-Regulatory Organization’s
15. Denise L. Nappier, Connecticut State Treasurer, State of Vermont, dated September Statement of the Terms of the Substance
Treasurer, dated August 20, 2009 25, 2009 (‘‘NAST Letter’’). of the Proposed Rule Change
(‘‘Connecticut Letter I’’).
16. Heather Traeger, Associate Counsel, Comments Relating to Amendment No. 1
The Exchange proposes to modify
Investment Company Institute (‘‘ICI’’), dated 1. Jeffrey L. Esser, Executive Director and Rule 7050 governing pricing for
August 21, 2009 (‘‘ICI Letter’’). CEO, Government Finance Officers NASDAQ members using the NASDAQ
17. David Muir, President, Utah Association, dated January 25, 2010 (‘‘GFOA
Government Finance Officers Association Options Market (‘‘NOM’’), NASDAQ’s
Letter III’’).
(‘‘Utah GFOA’’), Finance Director, 2. Denise L. Nappier, Connecticut State facility for executing and routing
Cottonwood Heights City, dated August 25, Treasurer, dated January 27, 2010 standardized equity and index options.
2009 (‘‘Utah GFOA Letter’’). (‘‘Connecticut Letter II’’). Specifically, NOM proposes to expand
18. Robert Scott, CPA, CPFO, Director of 3. Steven Apfelbacher, President, National the list of options that will be assessed
Finance, City of Brookfield, Wisconsin, dated Association of Independent Public Finance routing fees of $0.30 per contract for
August 30, 2009 (‘‘Brookfield Letter’’). Advisors (‘‘NAIPFA’’), dated February 5, 2010 customer orders and $0.55 per contract
19. Kenneth L. Rust, Chief Administrative (‘‘NAIPFA Letter’’).
Officer, and Eric H. Johansen, Debt Manager,
for Firm and Market Maker orders that
City of Portland, Oregon, dated September 1, [FR Doc. 2010–13155 Filed 6–1–10; 8:45 am] are routed from NOM to NASDAQ OMX
2009 (‘‘Portland Letter’’). BILLING CODE 8010–01–P PHLX, Inc. (‘‘Phlx’’).
20. Bernice Bagnall, President, Oregon While changes to the Fee Schedule
Municipal Finance Officers Association pursuant to this proposal are effective
(‘‘OMFOA’’), Tualatin Valley Water District, SECURITIES AND EXCHANGE
dated September 2, 2009 (‘‘OMFOA Letter’’). upon filing, the Exchange has
COMMISSION designated these changes to be operative
21. Gerry Fink, Village of Hinsdale,
Illinois, dated September 3, 2009 (‘‘Hinsdale [Release No. 34–62176; File No. SR– for transactions on June 1, 2010.
Letter’’). NASDAQ–2010–063] The text of the proposed rule change
22. Beth Kellar, International City/County
Self-Regulatory Organizations; The is set forth below. Proposed new text is
Management Association; Steve Traylor,
National Association of Counties; Cornelia NASDAQ Stock Market LLC; Notice of in italics and deleted text is in brackets.
Chebinou, National Association of State Filing and Immediate Effectiveness of * * * * *
Auditors, Comptrollers and Treasurers; Lars Proposed Rule Change Relating to
Etzkorn, National League of Cities; Larry 7050. NASDAQ Options Market
Routing Fees
Jones, U.S. Conference of Mayors; Amy Hille,
American Public Power Association; and The following charges shall apply to
May 26, 2010. the use of the order execution and
Rick Farrell, Council on Infrastructure Pursuant to Section 19(b)(1) of the
Financing Authorities; dated September 3, routing services of the NASDAQ
2009 (‘‘Consortium Letter’’). Securities Exchange Act of 1934 Options Market by members for all
23. Richard C. Kristof, Director of Financial (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 securities.
Services, City of Rio Rancho, Rio Rancho, notice is hereby given that on May 26,
New Mexico, dated September 3, 2009 (‘‘Rio 2010, The NASDAQ Stock Market LLC (1)–(3) No Change.
Rancho Letter’’). (‘‘NASDAQ’’ or ‘‘Exchange’’) filed with (4) Fees for routing contracts to
24. Eileen Bradley, Assistant Director of the Securities and Exchange markets other than the NASDAQ
Finance, Township of Lower Merion, dated Commission (‘‘SEC’’ or ‘‘Commission’’) Options Market shall be assessed as
September 4, 2009 (‘‘Lower Merion Letter’’).
25. R.T. McNamar, President, E-Certus,
the proposed rule change as described provided below. The current fees and a
Inc., dated September 8, 2009 (‘‘E-Certus in Items I, II, and III, below, which Items historical record of applicable fees
Letter’’). have been prepared by the Exchange. related to orders routed to other
26. David B. Vehaun, Assistant City The Commission is publishing this exchanges shall be posted on the
Manager, City of Rock Hill, South Carolina, notice to solicit comments on the NasdaqTrader.com Web site.
Exchange Customer Firm MM
BATS .................................................................................................................................................................... 0.36 0.55 0.55

BOX ..................................................................................................................................................................... 0.06 0.55 0.55
CBOE ................................................................................................................................................................... 0.06 0.55 0.55
ISE ....................................................................................................................................................................... 0.06 0.55 0.55
NYSE Arca Penny Pilot ....................................................................................................................................... 0.50 0.55 0.55
NYSE Arca Non Penny Pilot ............................................................................................................................... 0.06 0.55 0.55
NYSE AMEX ........................................................................................................................................................ 0.06 0.55 0.55
PHLX (for all options other than the below listed options) ................................................................................. 0.06 0.55 0.55
PHLX (for the following options only): AA, AAPL, ABK, ABX, AIG, ALL, AMD, AMR, AMZN, ARIA, AXP,
BAC, BRCD, C, CAT, CIEN, CIGX, CSCO, DELL, DIA, DNDN, DRYS, EBAY, EK, F, FAS, FAZ, GDX,
GE, GLD, GLW, GS, HAL, IBM, INTC, IWM, IYR, JPM, LVS, MGM, MOT, MSFT, MU, NEM, NOK,
NVDA, ONNN, ORCL, PALM, PFE, POT, QCOM, QID, QQQQ, RIG, RIMM, RMBS, SBUX, SDS, SIRI,
SKF, SLV, SMH, SNDK, SPY, T, TBT, TZA, UAUA, UNG, USO, UYG, V, VALE, VZ, WYNN, X, XHB,
XLF, XRX and YHOO ...................................................................................................................................... 0.30 0.55 0.55
* * * * * The text of the proposed rule change at http://

is available on the Exchange’s Web site www.nasdaqomx.cchwallstreet.com, at
1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4.
the principal office of the Exchange, and Rambus, Inc. (‘‘RMBS’’), ProShares C. Self-Regulatory Organization’s
at the Commission’s Public Reference UltraShort S&P500 (‘‘SDS’’), ProShares Statement on Comments on the
Room. UltraShort 20+ Year Treasury (’’TBT’’), Proposed Rule Change Received From
Visa, Inc. (‘‘V’’), Vale S.A. (‘‘VALE’’), Members, Participants or Others
II. Self-Regulatory Organization’s
Statement of the Purpose of, and SPDR S&P Homebuilders (‘‘XHB’’), No written comments were either
Statutory Basis for, the Proposed Rule Xerox Corp. (‘‘XRX’’) and Yahoo! Inc. solicited or received.
Change (‘‘YHOO’’).
III. Date of Effectiveness of the
In its filing with the Commission, the The Exchange is proposing these fees Proposed Rule Change and Timing for
Exchange included statements to recoup the majority of transaction Commission Action
concerning the purpose of and basis for and clearing costs associated with The foregoing rule change has become
the proposed rule change and discussed routing orders to Phlx. As with all fees, effective pursuant to Section
any comments it received on the the Exchange may adjust these routing 19(b)(3)(A)(ii) of the Act 6 and paragraph
proposed rule change. The text of these fees by filing a new proposed rule (f)(2) of Rule 19b–4 7 thereunder. At any
statements may be examined at the change. time within 60 days of the filing of the
places specified in Item IV below. The While changes to the Fee Schedule proposed rule change, the Commission
Exchange has prepared summaries, set may summarily abrogate such rule
pursuant to this proposal are effective
forth in sections A, B, and C below, of change if it appears to the Commission
the most significant aspects of such upon filing, the Exchange has
designated these changes to be operative that such action is necessary or
statements. appropriate in the public interest, for
for transactions on June 1, 2010.
A. Self-Regulatory Organization’s the protection of investors, or otherwise
Statement of the Purpose of, and 2. Statutory Basis in furtherance of the purposes of the
Statutory Basis for, the Proposed Rule Act.
NASDAQ believes that the proposed
Change IV. Solicitation of Comments
rule changes are consistent with the
1. Purpose provisions of Section 6 of the Act,4 in Interested persons are invited to
NASDAQ is proposing to modify Rule general, and with Section 6(b)(4) of the submit written data, views, and
7050 governing the fees assessed for Act,5 in particular, in that it provides for arguments concerning the foregoing,
options orders entered into NOM but the equitable allocation of reasonable including whether the proposed rule
routed to and executed on Phlx. dues, fees and other charges among change is consistent with the Act.
Specifically, NASDAQ is proposing to members and issuers and other persons Comments may be submitted by any of
expand the number of options to which using any facility or system which the following methods:
certain routing fees apply to reflect the NASDAQ operates or controls. The Electronic Comments
expansion of Phlx’s Fee Schedule for Exchange believes the proposed fee
rebates for adding and fees for removing • Use the Commission’s Internet
changes are equitable in that they apply
liquidity.3 comment form (http://www.sec.gov/
uniformly to all similarly situated rules/sro.shtml); or
NASDAQ currently assesses a $0.30 participants on NOM. The Exchange
per contract routing fee for customer • Send an e-mail to rule-
also believes that the proposed fee comments@sec.gov. Please include File
orders, and a $0.55 per contract routing
changes are reasonable because the Number SR–NASDAQ–2010–063 on the
fee for Firm and Market Maker orders
Exchange is seeking to recoup the costs subject line.
routed from NOM to Phlx for options
that are subject to rebates for adding and incurred for options orders entered into
NOM but routed to and executed on Paper Comments
fees for removing liquidity as described
in the Phlx Fee Schedule. To reflect the Phlx. • Send paper comments in triplicate
additions Phlx is making to its Fee NASDAQ is one of eight options to Elizabeth M. Murphy, Secretary,
Schedule, NASDAQ proposes to add the Securities and Exchange Commission,
market in the national market system for
following twenty-five options to the 100 F Street, NE., Washington, DC
standardized options. Joining NASDAQ
table set forth in Rule 7050(4): Ambac 20549–1090.
and electing to trade options is entirely
Financial Group, Inc. (‘‘ABK’’), Barrick All submissions should refer to File
voluntary. Under these circumstances,
Gold Corporation (‘‘ABX’’), Ariad Number SR–NASDAQ–2010–063. This
NASDAQ’s fees must be competitive
Pharmaceuticals, Inc. (‘‘ARIA’’), file number should be included on the
and low in order for NASDAQ to attract subject line if e-mail is used. To help the
American Express Company (‘‘AXP’’), order flow, execute orders, and grow as
Ciena Corp. (‘‘CIEN’’), Star Scientific, Commission process and review your
a market. NASDAQ thus believes that its comments more efficiently, please use
Inc. (‘‘CIGX’’), Dendreon Corp.
fees are fair and reasonable and only one method. The Commission will
(‘‘DNDN’’), eBay Inc. (‘‘EBAY’’), Corning
consistent with the Exchange Act. post all comments on the Commission’s
Inc. (‘‘GLW’’), Halliburton Company
(‘‘HAL’’), iShares Dow Jones US Real B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/
Estate (‘‘IYR’’), Motorola, Inc., (‘‘MOT’’), Statement on Burden on Competition rules/sro.shtml). Copies of the
NVIDIA Corporation (‘‘NVDA’’), ON submission, all subsequent
Semiconductor Corp. (‘‘ONNN’’), Oracle The Exchange does not believe that amendments, all written statements
Corp. (‘‘ORCL’’), ProShares UltraShort, the proposed rule change will impose with respect to the proposed rule
QQQ (‘‘QID’’), Transocean Ltd. (‘‘RIG’’), any burden on competition not change that are filed with the
necessary or appropriate in furtherance Commission, and all written

3 See SR–Phlx–2010–73 (May 20, 2010). For a
of the purposes of the Act. communications relating to the
description of the rebates for adding and fees for proposed rule change between the
removing liquidity on Phlx’s Fee Schedule, See
Securities Exchange Act Release Nos. 61684 (March
Commission and any person, other than
10, 2010), 75 FR 13189 (March 18, 2010) (SR–Phlx–
4 15 U.S.C. 78f. 6 15
2010–33); 61961 (April 22, 2010), 75 FR 22881 U.S.C. 78s(b)(3)(A)(ii).
(April 30, 2010) (SR–Phlx–2010–61). 5 15 U.S.C. 78f(b)(4). 7 17 CFR 240.19b–4(f)(2).
those that may be withheld from the comments on the proposed rule change be opened. The Exchange has selected
public in accordance with the from interested persons. the following four option classes to
provisions of 5 U.S.C. 552, will be participate in the Program: S&P 500
I. Self-Regulatory Organization’s
available for Web site viewing and Index options (SPX), S&P 100 Index
Statement of the Terms of Substance of
printing in the Commission’s Public American-style options (OEX), Mini-
the Proposed Rule Change
Reference Room, 100 F Street, NE., S&P 500 Index options (XSP), and S&P
Washington, DC 20549, on official CBOE proposes to modify its rules to 100 Index European-style options
business days between the hours of 10 permit the Exchange, on any Thursday (XEO).
a.m. and 3 p.m. Copies of such filing or Friday, to open Short Term Option The purpose of this filing is to permit
also will be available for inspection and Series that expire on the Friday of the the Exchange to open Short Term
copying at the principal office of the following business week. The Exchange Option Series on any Thursday (or
Exchange. All comments received will is not proposing any rule text changes. Friday) that expire on the Friday of the
be posted without change; the The rule proposal is available on the following business week. In support of
Commission does not edit personal Exchange’s Web site (http:// this modification, the Exchange states
identifying information from www.cboe.org/legal), at the Exchange’s that it has received requests to begin
submissions. You should submit only Office of the Secretary and at the certain Short Term Options on
information that you wish to make Commission. Thursday so that market participants
publicly available. All submissions may have an opportunity to ‘‘roll’’
II. Self-Regulatory Organization’s expiring positions; that is, trade out of
should refer to File Number SR– Statement of the Purpose of, and
NASDAQ–2010–063 and should be an expiring Short Term Option Series
Statutory Basis for, the Proposed Rule and re-establish a new position in Short
submitted on or before June 23, 2010. Change Term Option Series expiring one week
For the Commission, by the Division of In its filing with the Commission, the later. Since the last trading day for
Trading and Markets, pursuant to delegated
self-regulatory organization included A.M.-settled Short Term Options on
authority.8
statements concerning the purpose of indexes is generally a Thursday, and
Florence E. Harmon,
and basis for the proposed rule change new A.M.-settled Short Term Option
Deputy Secretary. and discussed any comments it received Series on indexes are generally listed on
[FR Doc. 2010–13158 Filed 6–1–10; 8:45 am] on the proposed rule change. The text Friday, new and expiring A.M.-settled
BILLING CODE 8011–01–P of those statements may be examined at Short Term Option Series on indexes
the places specified in Item IV below. are never available concurrently.
The Exchange has prepared summaries, As a result, it is impossible to
SECURITIES AND EXCHANGE set forth in sections A, B, and C below, implement a position roll in A.M.-
COMMISSION of the most significant parts of such settled Short Term Options on indexes.
statements. The Exchange has been advised that
[Release No. 34–62170; File No. SR–CBOE–
2010–048] opening A.M.-settled Short Term
A. Self-Regulatory Organization’s
Options on indexes just one day earlier,
Statement of the Purpose of, and
Self-Regulatory Organizations; and providing an opportunity to roll,
Statutory Basis for, the Proposed Rule
Chicago Board Options Exchange, would enhance the value A.M.-settled
Change
Incorporated; Notice of Filing and Short Term Options on indexes as a risk
Immediate Effectiveness of Proposed 1. Purpose management tool.
Rule Change To Permit CBOE To Open The Securities and Exchange In order to avoid investor confusion,
Short Term Option Series on Commission previously approved the Exchange is proposing to permit the
Thursdays CBOE’s proposed rule change to listing of all Short Term Option series
permanently establish the Short Term (equity and index) on any Thursday or
May 25, 2010. Friday. As proposed, the rule changes
Option Series Pilot Program
Pursuant to Section 19(b)(1) of the (‘‘Program’’).5 The Program allows CBOE give the Exchange the flexibility to list
Securities Exchange Act of 1934 (the Short Term Option series on any
to list and trade equity and index option
‘‘Act’’),1 and Rule 19b–4 thereunder,2 Thursday or Friday, and do not restrict
series that expire one week after being
notice is hereby given that on May 19, opened for trading. Specifically, Rules listing to a particular day.
2010, the Chicago Board Options 5.5(d) and 24.9 provide that, after an 2. Statutory Basis
Exchange, Incorporated (‘‘Exchange’’ or option class has been approved for
‘‘CBOE’’) filed with the Securities and The Exchange believes this rule
listing and trading on the Exchange, the proposal is consistent with the Act and
Exchange Commission (the Exchange may open for trading on any
‘‘Commission’’) the proposed rule the rules and regulations under the Act
Friday that is a business day series of applicable to a national securities
change as described in Items I, II, and options on that class that expire on the
III below, which Items have been exchange and, in particular, the
next Friday that is a business day.6 requirements of Section 6(b) of the Act.7
prepared by the Exchange. The
Under the Program, CBOE may select up Specifically, the Exchange believes that
Exchange filed the proposal as a ‘‘non-
to five approved option classes on the proposed rule change is consistent
controversial’’ proposed rule change
which Short Term Options Series may with the Section 6(b)(5) Act 8
pursuant to Section 19(b)(3)(A)(iii) of
the Act 3 and Rule 19b–4(f)(6) 5 See Securities Exchange Act Release No. 59824
requirements that the rules of an
thereunder.4 The Commission is exchange be designed to promote just
(April 27, 2009), 74 FR 20518 (May 4, 2009) (SR–

publishing this notice to solicit CBOE–2009–018). and equitable principles of trade, to
6 If the Exchange is not open for business on a prevent fraudulent and manipulative
8 17 Friday, the Short Term Opening Date will be the acts and, in general, to protect investors
CFR 200.30–3(a)(12).
first business day immediately prior to that Friday.
1 15 U.S.C. 78s(b)(1). Similarly if the Exchange is not open for business
and the public interest. In particular, the
2 17 CFR 240.19b–4.
on a Friday, the Short Term Option Expiration Date
3 15 U.S.C. 78s(b)(3)(A)(iii). 7 15 U.S.C. 78f(b).
will be the first business day immediately prior to
4 17 CFR 240.19b–4(f)(6). that Friday. 8 15 U.S.C. 78f(b)(5).
proposed rule change will benefit including whether the proposed rule SECURITIES AND EXCHANGE
market participants by allowing them to change is consistent with the Act. COMMISSION
more closely manage their risk Comments may be submitted by any of
[Release No. 34–62159; File No. SR–NYSE–
exposures and carry out their the following methods: 2010–36]
investment objectives.
Electronic Comments
B. Self-Regulatory Organization’s Self-Regulatory Organizations; New
• Use the Commission’s Internet York Stock Exchange LLC; Notice of
Statement on Burden on Competition comment form (http://www.sec.gov/ Filing and Immediate Effectiveness of
CBOE does not believe that the rules/sro.shtml); or Proposed Rule Change To Amend the
proposed rule change will impose any • Send an e-mail to rule- Exchange Price List
burden on competition not necessary or comments@sec.gov. Please include File
appropriate in furtherance of the Number SR–CBOE–2010–048 on the May 24, 2010.
purposes of the Act. subject line. Pursuant to Section 19(b)(1) of the
C. Self-Regulatory Organization’s Securities Exchange Act of 1934
Paper Comments
Statement on Comments on the (‘‘Act’’) 1 and Rule 19b-4 thereunder,2
• Send paper comments in triplicate notice is hereby given that on May 7,
Proposed Rule Change Received From to Elizabeth M. Murphy, Secretary,
Members, Participants, or Others 2010, New York Stock Exchange LLC
Securities and Exchange Commission, (‘‘NYSE’’ or ‘‘Exchange’’) filed with the
No written comments were solicited 100 F Street, NE., Washington, DC Securities and Exchange Commission
or received with respect to the proposed 20549–1090. (‘‘Commission’’) the proposed rule
rule change. All submissions should refer to File change as described in Items I, II, and
III. Date of Effectiveness of the Number SR–CBOE–2010–048. This file III below, which Items have been
Proposed Rule Change and Timing for number should be included on the prepared by the Exchange. The
Commission Action subject line if e-mail is used. To help the Commission is publishing this notice to
Commission process and review your solicit comments on the proposed rule
Because the foregoing proposed rule change from interested persons.
comments more efficiently, please use
does not (i) significantly affect the
only one method. The Commission will I. Self-Regulatory Organization’s
protection of investors or the public
post all comments on the Commission’s Statement of the Terms of Substance of
interest; (ii) impose any significant
Internet Web site (http://www.sec.gov/ the Proposed Rule Change
burden on competition; and (iii) become
operative for 30 days from the date on rules/sro.shtml). Copies of the
submission, all subsequent The Exchange proposes to amend its
which it was filed, or such shorter time 2010 Price List to delete references to
as the Commission may designate if amendments, all written statements
with respect to the proposed rule two fees that are no longer applicable.
consistent with the protection of The text of the proposed rule change is
investors and the public interest, change that are filed with the
Commission, and all written available on the Exchange’s Web site at
provided that the self-regulatory http://www.nyse.com, on the
organization has given the Commission communications relating to the
proposed rule change between the Commission’s Web site at http://
written notice of its intent to file the www.sec.gov, and at the Commission’s
proposed rule change at least five Commission and any person, other than
those that may be withheld from the Public Reference Room.
business days prior to the date of filing
of the proposed rule change or such public in accordance with the II. Self-Regulatory Organization’s
shorter time as designated by the provisions of 5 U.S.C. 552, will be Statement of the Purpose of, and
Commission, the proposed rule change available for Web site viewing and Statutory Basis for, the Proposed Rule
has become effective pursuant to printing in the Commission’s Public Change
Section 19(b)(3)(A) of the Act 9 and Rule Reference Room, 100 F Street, NE., In its filing with the Commission, the
19b–4(f)(6) thereunder.10 At any time Washington, DC 20549, on official self-regulatory organization included
within 60 days of the filing of such business days between the hours of 10 statements concerning the purpose of
proposed rule change, the Commission a.m. and 3 p.m. Copies of the filing also and basis for the proposed rule change
may summarily abrogate such rule will be available for inspection and and discussed any comments it received
change if it appears to the Commission copying at the principal office of the on the proposed rule change. The text
that such action is necessary or Exchange. All comments received will of these statements may be examined at
appropriate in the public interest, for be posted without change; the the places specified in Item IV below.
the protection of investors, or otherwise Commission does not edit personal The NYSE has prepared summaries, set
in furtherance of the purposes of the identifying information from forth in Sections A, B and C below, of
Act. submissions. You should submit only the most significant aspects of such
information that you wish to make statements.
IV. Solicitation of Comments available publicly. All submissions
Interested persons are invited to should refer to File Number SR–CBOE– A. Self-Regulatory Organization’s
submit written data, views, and 2010–048 and should be submitted on Statement of the Purpose of, and
arguments concerning the foregoing, or before June 23, 2010. Statutory Basis for, the Proposed Rule
Change
For the Commission, by the Division of
9 15 U.S.C. 78s(b)(3)(A). Trading and Markets, pursuant to delegated 1. Purpose
10 17 CFR 240.19b–4(f)(6). Rule 19b–4(f)(6)(iii)

authority.11
requires the self-regulatory organization to submit The Exchange’s 2010 Price List
Florence E. Harmon, includes (i) a fee of $5,000 payable in
to the Commission written notice of its intent to file
the proposed rule change, along with a brief Deputy Secretary. connection with a new application for
description and text of the proposed rule change, [FR Doc. 2010–13160 Filed 6–1–10; 8:45 am]
at least five business days prior to the date of filing
NYSE membership by a limited liability
of the proposed rule change, or such shorter time
1 15 U.S.C. 78s(b)(1).
as designated by the Commission. The Exchange
has satisfied this requirement. 11 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.
company (‘‘LLC’’) and (ii) an application members: $20,000 for carrying firms, necessary or appropriate in the public
fee of $1,000 payable in connection with $7,500 for introducing firms, and $2,500 interest, for the protection of investors,
the movement of existing members to for non-public organizations (i.e., floor or otherwise in furtherance of the
non-public organizations. The Exchange broker member organizations that do not purposes of the Act.
proposes to delete these fees from the have a public business). Consequently,
IV. Solicitation of Comments
2010 Price List as they are no longer it is the admission of a corporate entity
applicable. These fees related only to as a member organization which gives Interested persons are invited to
circumstances that arose when NYSE rise to a registration fee under current submit written data, views and
membership was required to be held by NYSE rules and the movement of floor arguments concerning the foregoing,
individuals, as opposed to the current personnel from one member including whether the proposed rule
structure which is based on member organization to another is not subject to change is consistent with the Act.
organizations. The Exchange ceased to registration fees, as those individuals Comments may be submitted by any of
be a member-owned organization in are not members in their own right. The the following methods:
2006 at the time of its merger with reference to individuals in the line of Electronic Comments
Archipelago Holdings, Inc. In the 2010 Price List with respect to non-
connection with the merger, NYSE public organizations will be deleted, as • Use the Commission’s Internet
members received shares in the new it is also inapplicable under the current comment form (http://www.sec.gov/
publicly-traded parent company (NYSE NYSE membership structure. rules/sro.shtml); or
Group, Inc., the predecessor to the • Send an e-mail to rule-
2. Statutory Basis comments@sec.gov. Please include File
NYSE’s current publicly-traded parent
company, NYSE Euronext). Since this The Exchange believes that the Number SR–NYSE–2010–36 on the
demutualization, member organizations proposed rule change is consistent with subject line.
obtain the right to have their employees the objectives of Section 6 6 of the Act
Paper Comments
on the NYSE trading floor by purchasing in general and furthers the objectives of
trading licenses. Section 6(b)(4) 7 in particular, in that it • Send paper comments in triplicate
As a consequence of the is designed provide for the equitable to Elizabeth M. Murphy, Secretary,
demutualization, the categories of allocation of reasonable dues, fees and Securities and Exchange Commission,
membership contemplated by the above- other charges among its members and 100 F Street NE., Washington, DC
described fees no longer exist. The LLC other persons using its facilities. The 20549–1090.
category of membership was created in Exchange believes that the proposal All submissions should refer to File
2005 to enable an individual member does not constitute an inequitable Number SR–NYSE–2010–36. This file
who was retiring to retain an ownership allocation of dues, fees and other number should be included on the
interest in the Exchange for estate charges, as the fees being eliminated subject line if e-mail is used. To help the
planning purposes.3 The $5,000 related to categories of NYSE members Commission process and review your
application fee was instituted because that no longer exist under the current comments more efficiently, please use
the Exchange believed that there were membership structure. only one method. The Commission will
additional costs to the Exchange in B. Self-Regulatory Organization’s post all comments on the Commission’s
connection with memberships held by Statement on Burden on Competition Internet Web site (http://www.sec.gov/
LLCs rather than individuals, so the rules/sro/shtml). Copies of the
Exchange believed that it was The Exchange does not believe that submission, all subsequent
appropriate to charge a higher the proposed rule change will impose amendments, all written statements
application fee than the $2,500 fee that any burden on competition that is not with respect to the proposed rule
would have otherwise applied.4 The necessary or appropriate in furtherance change that are filed with the
existing members to non-public of the purpose of the Act. Commission, and all written
organizations fee of $1,000 was adopted C. Self-Regulatory Organization’s communications relating to the
in 1990 and was applied to an Statement on Comments on the proposed rule change between the
individual member who was associated Proposed Rule Change Received From Commission and any person, other than
with a member organization and who Members, Participants or Others those that may be withheld from the
left that member organization to become public in accordance with the
an independent floor broker without a Written comments were neither provisions of 5 U.S.C. 552, will be
public business or to become associated solicited nor received. available for Web site viewing and
with a new member organization III. Date of Effectiveness of the printing in the Commission’s Public
without a public business that was Proposed Rule Change and Timing for Reference Room, 100 F Street, NE.,
comprised of existing members.5 It also Commission Action Washington, DC 20549, on official
applied to an application for business days between the hours of 10
membership by any new floor brokerage The foregoing rule change is effective a.m. and 3 p.m. Copies of such filing
entity without a public business that upon filing pursuant to Section will also be available for inspection and
consisted of existing individual 19(b)(3)(A) 8 of the Act and Rule 19b– copying at the principal office of the
members. All NYSE members are now 4(f)(2) 9 thereunder. Exchange. All comments received will
corporations or other legal entities and At any time within 60 days of the be posted without change; the
are subject to the applicable application filing of the proposed rule change, the Commission does not edit personal
Commission may summarily abrogate
fees for the various categories of new identifying information from

such rule change if it appears to the submissions. You should submit only
3 See Securities Exchange Act Release No. 52891 Commission that such action is information that you wish to make
(December 5, 2005), 70 FR 73503 (December 12, available publicly. All submissions
6 15 U.S.C. 78f.
2005) (SR–NYSE–2005–83).
4 See note 1 [sic] supra. 7 15 U.S.C. 78f(b)(4).
should refer to File No. SR–NYSE–
5 See Securities Exchange Act Release No. 28129 8 15 U.S.C. 78s(b)(3)(A). 2010–36 and should be submitted on or
(June 19, 1990) (SR–NYSE–90–27). 9 17 CFR 240.19b–4(f)(2). before June 23, 2010.
For the Commission, by the Division of II. Self-Regulatory Organization’s notice published on the MSRB Web site,
Trading and Markets, pursuant to delegated Statement of the Purpose of, and which date shall be no later than nine
authority.10 Statutory Basis for, the Proposed Rule months after Commission approval of
Florence E. Harmon, Change the proposed rule change and shall be
Deputy Secretary. In its filing with the Commission, the announced no later than five (5)
[FR Doc. 2010–13161 Filed 6–1–10; 8:45 am] MSRB included statements concerning business days prior to the effective date.
BILLING CODE 8011–01–P the purpose of and basis for the 2. Statutory Basis
proposed rule change. The text of these
statements may be examined at the The MSRB has adopted the proposed
SECURITIES AND EXCHANGE places specified in Item IV below. The rule change pursuant to Section
COMMISSION MSRB has prepared summaries, set 15B(b)(2)(C) of the Exchange Act, which
forth in Sections A, B and C below, of provides that MSRB’s rules shall:
[Release No. 34–62175; File No. SR–MSRB– the most significant aspects of such be designed to prevent fraudulent and
2010–03] statements. manipulative acts and practices, to promote
just and equitable principles of trade, to
Self-Regulatory Organizations; A. Self-Regulatory Organization’s foster cooperation and coordination with
Municipal Securities Rulemaking Statement of the Purpose of, and persons engaged in regulating, clearing,
Board; Notice of Filing of Proposed Statutory Basis for, the Proposed Rule settling, processing information with respect
Rule Change Relating to Amendments Change to, and facilitating transactions in municipal
to the Continuing Disclosure Service securities, to remove impediments to and
1. Purpose perfect the mechanism of a free and open
of the MSRB’s Electronic Municipal
The proposed rule change would market in municipal securities, and, in
Market Access System (EMMA®) general, to protect investors and the public
amend the EMMA continuing disclosure
May 26, 2010. service to provide for the posting of interest.
Pursuant to Section 19(b)(1) of the credit rating information on the EMMA The inclusion of credit rating and
Securities Exchange Act of 1934 (the public Web site. If and to the extent that related information provided by
‘‘Exchange Act’’) 1 and Rule 19b–4 one or more Nationally Recognized NRSROs agreeing to provide such
thereunder,2 notice is hereby given that Statistical Rating Organization information for display on the EMMA
on May 20, 2010, the Municipal (‘‘NRSRO’’) has agreed to provide credit Web site would serve to promote the
Securities Rulemaking Board (the rating and related information regarding statutory mandate of the MSRB to
‘‘MSRB’’) filed with the Securities and municipal securities to the MSRB, at no protect investors and the public interest.
Exchange Commission (the charge, through an automated data feed Although credit rating information is
‘‘Commission’’) the proposed rule for dissemination on the EMMA Web just one of many factors to consider in
change as described in Items I, II, and site, the EMMA Web site would display making an investment decision and in
III below, which Items have been such credit rating and related evaluating the credit worthiness and
prepared by the MSRB. The information along with any documents value of existing municipal securities
Commission is publishing this notice to and identifying information relating to holdings, the proposed rule change
solicit comments on the proposed rule the applicable municipal security would make such information more
change from interested persons. otherwise displayed on the EMMA Web easily accessible on an equal basis to all
site. Currently, such other documents or participants in the municipal securities
I. Self-Regulatory Organization’s
information may include official market, including in particular retail
Statement of the Terms of Substance of
statements, advance refunding investors in municipal securities who
the Proposed Rule Change
documents, continuing disclosure do not normally have access to
The MSRB has filed with the documents, transaction price data, information services customarily used
Commission a proposed rule change to interest rate reset information, and by professional market participants.
amend the continuing disclosure service identifying information relating to a
of the MSRB’s Electronic Municipal B. Self-Regulatory Organization’s
specific municipal security.
Market Access system (‘‘EMMA’’) to Credit rating and related information Statement on Burden on Competition
provide for the posting of credit rating normally will be posted within 15 The MSRB does not believe the
information on the EMMA public Web minutes of successful transmission to proposed rule change will impose any
site. The MSRB has requested an the MSRB during the hours of 8:30 a.m. burden on competition not necessary or
effective date for the proposed rule to 6 p.m. Eastern time on an MSRB appropriate in furtherance of the
change of a date to be announced by the business day, and any such information purposes of the Exchange Act. Credit
MSRB in a notice published on the successfully transmitted outside of the ratings and related information
MSRB Web site, which date shall be no MSRB’s normal business hours will be provided on the EMMA Web page
later than nine months after posted as soon as practicable. The would be available to all persons
Commission approval of the proposed MSRB shall have no obligation to simultaneously. Any credit rating and
rule change and shall be announced no supplement, modify or confirm credit related information of an NRSRO would
later than five (5) business days prior to rating and related information received be displayed on the EMMA Web site
the effective date. by it through an NRSRO’s automated only with the agreement of such NRSRO
The text of the proposed rule change data feed based on information available to such use of its information. The
is available on the MSRB’s Web site at from any other source, including but not MSRB believes that the benefits realized
http://www.msrb.org/msrb1/sec.asp, at limited to any such information made by the investing public from the broader
the MSRB’s principal office, and at the publicly available by an NRSRO by any and easier availability of credit rating
Commission’s Public Reference Room. means other than its automated data and related information provided by
feed. NRSROs, including in particular retail
10 17 CFR 200.30–3(a)(12). The MSRB requests an effective date investors in municipal securities who
1 15 U.S.C. 78s(b)(1). for the proposed rule change of a date do not normally have access to
2 17 CFR 240.19b–4. to be announced by the MSRB in a information services customarily used
by professional market participants, subject line if e-mail is used. To help the filed with the Securities and Exchange
would justify any potentially negative Commission process and review your Commission (‘‘Commission’’ or ‘‘SEC’’),
impact on such existing information comments more efficiently, please use pursuant to Section 19(b)(1) of the
services from the display of credit rating only one method. The Commission will Securities Exchange Act of 1934
and related information on the EMMA post all comments on the Commission’s (‘‘Exchange Act’’),1 and Rule 19b-4
Web site. Internet Web site (http://www.sec.gov/ thereunder,2 a proposed rule change
rules/sro.shtml). Copies of the relating to Rule G–32, relating to
C. Self-Regulatory Organization’s submission, all subsequent
Statement on Comments on the disclosures in connection with primary
amendments, all written statements offerings, Form G–32, and the primary
Proposed Rule Change Received From with respect to the proposed rule
Members, Participants or Others market disclosure and primary market
change that are filed with the subscription services of the MSRB’s
Written comments were neither Commission, and all written Electronic Municipal Market Access
solicited nor received on the proposed communications relating to the System (‘‘EMMA’’). The proposed rule
rule change. proposed rule change between the change was published for comment in
Commission and any person, other than the Federal Register on July 22, 2009.3
III. Date of Effectiveness of the
those that may be withheld from the The Commission received eight
Proposed Rule Change and Timing for
public in accordance with the comment letters about the proposed rule
Commission Action
provisions of 5 U.S.C. 552, will be change.4 On December 18, 2009, the
Within 35 days of publication of this available for inspection and copying in MSRB filed with the Commission,
notice in the Federal Register or within the Commission’s Public Reference pursuant to Section 19(b)(1) of the
such longer period (i) as the Room, 100 F Street, NE., Washington, Exchange Act 5 and Rule 19b–4
Commission may designate up to 90 DC 20549, on official business days thereunder,6 Amendment No. 1 to the
days of such date if it finds such longer between the hours of 10 a.m. and 3 p.m. proposed rule change. Amendment No.
period to be appropriate and publishes Copies of the filing also will be available 1 to the proposed rule change was
its reasons for so finding, or (ii) as to for inspection and copying at the published for comment in the Federal
which the self-regulatory organization principal office of the MSRB. All
Register on January 5, 2010.7 The
consents, the Commission will: comments received will be posted
(A) By order approve the proposed Commission received no comment
without change; the Commission does
rule change, or letters concerning Amendment No. 1.
not edit personal identifying
(B) Institute proceedings to determine On May 21, 2010, the MSRB filed with
information from submissions. You
whether the proposed rule change the Commission, pursuant to Section
should submit only information that
should be disapproved. 19(b)(1) of the Exchange Act 8 and Rule
you wish to make available publicly. All
19b-4 thereunder,9 Amendment No. 2 to
The MSRB has requested an effective submissions should refer to File
the proposed rule change requesting an
date for the proposed rule change of a Number SR–MSRB–2010–03 and should
additional three months to implement
date to be announced by the MSRB in be submitted on or before June 23, 2010.
the proposal.10 This order approves the
a notice published on the MSRB Web For the Commission, by the Division of proposed rule change, as modified by
site, which date shall be no later than Trading and Markets, pursuant to delegated Amendment Nos. 1 and 2.
nine months after Commission approval authority.3
of the proposed rule change and shall be Florence E. Harmon, 1 15 U.S.C. 78s(b)(1).
announced no later than five (5) Deputy Secretary. 2 17 CFR 240.19b–4.
business days prior to the effective date. [FR Doc. 2010–13159 Filed 6–1–10; 8:45 am] 3 See Securities Exchange Act Release No. 60314
(July 15, 2009), 74 FR 36300 (July 22, 2009) (the

IV. Solicitation of Comments BILLING CODE 8010–01–P
‘‘original proposed rule change’’).
Interested persons are invited to 4 See letters from: Ernesto A. Lanza, General
submit written data, views, and Counsel, MSRB, dated August 6, 2009; Michael
SECURITIES AND EXCHANGE Decker, Co-CEO and Mike Nicholas, Co-Chief
arguments concerning the foregoing, COMMISSION Executive Officer, Regional Bond Dealers
including whether the proposed rule Association (‘‘RBDA’’), dated August 12, 2009
change is consistent with the Act. [Release No. 34–62182, File No. SR–MSRB– (‘‘RBDA Letter’’); Leon J. Bijou, Managing Director
2009–09] and Associate General Counsel, Securities Industry
Comments may be submitted by any of
and Financial Markets Association (‘‘SIFMA’’),
the following methods: Self-Regulatory Organizations; dated August 12, 2009 (‘‘SIFMA Letter’’); John
Electronic Comments Municipal Securities Rulemaking Wallingford, Executive Board Member, Virginia
Board; Order Granting Approval of Government Finance Officers’ Association
• Use the Commission’s Internet (‘‘Virginia GFOA’’), dated August 12, 2009; William
Proposed Rule Change, as Modified by A. Holby, President, The National Association of
comment form (http://www.sec.gov/
Amendment Nos. 1 and 2 Thereto, Bond Lawyers (‘‘NABL’’), dated August 13, 2009
rules/sro.shtml); or Relating to Rule G–32, on Disclosures (‘‘NABL Letter’’); Marycarol C. White, CPA, CPFO,
• Send an e-mail to rule- President, Virginia Government Finance Officers’
in Connection with Primary Offerings,
comments@sec.gov. Please include File Association, dated August 14, 2009 (‘‘Virginia
Form G–32, and the Primary Market GFOA Letter’’); Denise L. Nappier, Connecticut
Number SR–MSRB–2010–03 on the
Disclosure and Primary Market State Treasurer, dated August 20, 2009
subject line.
Subscription Services of the MSRB’s (‘‘Connecticut Treasurer Letter’’); and Heather
Paper Comments Electronic Municipal Market Access Traeger, Associate Counsel, Investment Company
Institute (‘‘ICI’’), dated August 21, 2009 (‘‘ICI
• Send paper comments in triplicate System (EMMA®) Letter’’).
5 15 U.S.C. 78s(b)(1).
to Elizabeth M. Murphy, Secretary, May 26, 2010. 6 17 CFR 240.19b–4.
Securities and Exchange Commission,
100 F Street, NE., Washington, DC I. Introduction 7 See Securities Exchange Act Release No. 61238
(December 23, 2009), 75 FR 492 (January 5, 2010).

20549–1090. On July 14, 2009, the Municipal 8 15 U.S.C. 78s(b)(1).
All submissions should refer to File Securities Rulemaking Board (‘‘MSRB’’), 9 17 CFR 240.19b–4.
Number SR–MSRB–2010–03. This file 10 This is a technical amendment and is not
number should be included on the 3 17 CFR 200.30–3(a)(12). subject to notice and comment.
II. Description of the Proposed Rule Amendment No. 1 proposes to make has provided such information
Change, as Modified by Amendment certain modifications to the original accurately as of the closing date, it
Nos. 1 and 2 to the Proposed Rule proposed rule change based on would not be obligated to update the
Change comments received on the original information provided if there are any
proposed rule change. Amendment No. subsequent changes to such
The proposed rule change consists of
1 would modify the original proposed information, such as additions,
amendments to Rule G–32 and Form G–
rule change by eliminating the proposed deletions or modifications to the
32 to require underwriters of primary
requirement to submit contact identities of obligated persons or
offerings of municipal securities to information for a representative of the changes in the timing for providing
submit to the MSRB’s EMMA system, as issuer and/or any obligated persons for annual financial information. Issuers
part of their primary offering purposes of establishing continuing and obligated persons will be able to
submission obligation under Rule G– disclosure submission accounts for such make changes to such information
32(b), certain key items of information issuer and/or obligated persons in through their submission accounts
relating to continuing disclosure connection with their submissions to established in connection with EMMA’s
undertakings made by issuers and other the EMMA system. Underwriters continuing disclosure service.
obligated persons in connection with currently are able to provide contact Information regarding whether an
such primary offerings. These items of information for issuer or obligated offering is subject to a continuing
information would be made available to person representatives with respect to disclosure undertaking, the names of
the public through the EMMA Web current and past primary offerings obligated persons and the deadlines for
portal and are intended to inform through EMMA on a voluntary basis and providing annual financial information
investors in advance whether the MSRB believes that this process has would be displayed on the EMMA Web
continuing disclosures will be made been effective. portal and also would be included in
available with respect to a particular The name or names of obligated EMMA’s primary market disclosure
municipal security, from and about persons to be provided would be of the subscription service. These items are
whom such continuing disclosures are entity acting as an obligated person intended to provide investors and others
expected to be made, and the timing by identified in the continuing disclosure with information on the expected
which such disclosures should be made undertaking, not an individual at such availability of disclosures following the
available. entity, unless the obligated person is in initial issuance of the securities. In
The items of information regarding fact an individual. The timing for particular, users of the EMMA Web
continuing disclosure undertakings to submission of annual financial portal would be able to determine
be provided by underwriters through information could be provided either as which obligated persons are expected to
Form G–32 would include: a specific date each year (i.e., month and submit annual financial information,
• Whether the issuer or other day, such as June 30) or the number of audited financial statements and
obligated persons have agreed to days or months after the end of the material event notices on an on-going
undertake to provide continuing fiscal year (i.e., 120 days after the end basis, as well as the date each year by
disclosure information as contemplated of the fiscal year). The underwriter which they should expect to have access
by Securities Exchange Act Rule 15c2– could use the day/month count to the annual financial information.
12; alternative only if the underwriter also In Amendment No. 2, the MSRB
• The name of any obligated person, submits the day on which the issuer’s or requested an effective date for the
other than the issuer of the municipal obligated person’s fiscal year ends (i.e., proposed rule change of a date to be
securities, that has or will undertake, or month and day, such as June 30). If announced by the MSRB in a notice
is otherwise expected to provide, annual financial information is expected published on the MSRB Web site, which
continuing disclosure as identified in to be submitted by more than one entity date shall be no later than one year after
the continuing disclosure and such information is expected to be Commission approval of the proposed
undertaking;11 submitted by different deadlines, each rule change and shall be announced no
• The timing set forth in the such deadline would be provided later than sixty (60) days prior to the
continuing disclosure undertaking, matched to the appropriate issuer and/ effective date.
pursuant to Rule 15c2–12(b)(5)(ii)(C) or or obligated person. III. Summary of Comments Received
otherwise, for the submission of annual The underwriter would be required to
and the MSRB’s Response
financial information each year by the provide information regarding whether
the issuer or other obligated persons General Comments
issuer and/or any obligated persons to
the EMMA system, either as a specific have agreed to undertake to provide As previously noted, the Commission
continuing disclosure information as received eight comment letters on the
date or as the number of days or months
contemplated by Rule 15c2–12 by no original proposed rule change 13 and no
after a specified end date of the issuer’s
later than the date of first execution of comments on Amendment No. 1. Most
or obligated person’s fiscal year.12
transactions in municipal securities sold of the commenters expressed support
11 Amendment No. 1 proposes to modify the
in the primary offering. The remaining for the proposal’s general goal of
original proposed rule change by conforming the
items of information would be required increasing transparency and disclosure
definition of obligated person more closely with the to be provided by the closing date of the in the market for municipal securities.14
definition used in Rule 15c2–12 and by making primary offering. Until closing, the However, some commenters objected to
clear that the obligated persons to be identified are underwriter would be required to
those that are specifically identified in the specific new requirements that the
update promptly any information it has
continuing disclosure undertaking.

12 Amendment No. 1 proposes to modify the previously provided on Form G–32 13 See supra note 4.
original proposed rule change by permitting this which may have changed or to correct 14 See, e.g., RBDA Letter, SIFMA Letter, Virginia
information to be provided as the number of days promptly any inaccuracies in such GFOA Letter, Connecticut Treasurer Letter, ICI
or months after the end of the fiscal year, if the information, and would be responsible Letter. The MSRB filed a comment letter noting that
fiscal year end date is also submitted, as an it was extending the time period for Commission
alternative to submission of the specific deadline
for ensuring that such information action on the proposed rule change. The first letter
date as provided in the original proposed rule provided by it is accurate as of the from the Virginia GFOA requested an extension of
change. closing date. So long as the underwriter time to submit a comment letter.
proposal would place on statement would effectively discourage standards under Rule 15c2–12 or any
underwriters,15 requested clarification investors from having to read the official other Commission rule.22
of certain aspects of the proposal,16 statement itself. SIFMA further stated
Identification of Obligated Persons
suggested alternative approaches,17 or that, if the MSRB wants to highlight
expressed concern with the timing of issuers’ continuing disclosure The original proposed rule change
the proposal.18 obligations, this can be done by creating would require the underwriter to
The Connecticut Treasurer, ICI and a best practices standard. Finally, provide, on amended Form G–32, the
Virginia GFOA were generally SIFMA urged the MSRB to commit to name of any obligated person, other
supportive. The Connecticut Treasurer making EMMA compatible with than the issuer of the municipal
stated that the original proposed rule information underwriters are providing securities, that has or will undertake, or
change would make municipal to the Depository Trust and Clearing is otherwise expected to provide,
disclosure more transparent, efficient, Corporation’s New Issue Information continuing disclosure pursuant to the
consistent, comparable and accessible to Dissemination System (‘‘NIIDS’’). continuing disclosure undertaking.
investors, particularly individual NABL suggested that underwriters
NABL did not state a position
investors. ICI stated that the original only be required ‘‘to identify those
regarding the original proposed rule
proposed rule change would ensure the persons expressly specified in the
change but recommended clarifications
accessibility and improve the utility of continuing disclosure undertaking who
and modifications. NABL recommended
continuing disclosure information for will be required to make continuing
that the Commission clarify, consistent
investors and would further enhance disclosure filings or to state that such
with Rule 15c2–12, that the proposed
transparency in the municipal securities persons will be determined by the
amendment to Rule G–32 does not alter
market. functional descriptions contained in the
the ‘‘reasonable determination’’ standard
RBDA supported the goal of the continuing disclosure undertaking.’’
of Rule 15c2–12(b)(5)(i) or require
original proposed rule change but NABL recommended that the
underwriters to provide information
suggested that underwriters be required Commission make clear in any approval
about obligated persons that could be
to submit continuing disclosure order that Rule G–32 is intended to be
viewed as additional certification
agreements rather than the information a mechanical reporting requirement by
beyond the obligations prescribed by
specified in the proposal. SIFMA which the underwriter is required to
Rule 15c2–12(b)(5)(i). NABL also
opposed the original proposed rule report which persons are identified in
suggested that a more complete analysis
change. Both RBDA and SIFMA the applicable continuing disclosure
of the MSRB’s statutory authority for
expressed concern that requiring agreement as being responsible for
adopting the original proposed rule
underwriters to extract information from continuing disclosure, and is not
change be provided.
documents could result in submission intended to impose on the underwriter
The MSRB noted that collecting and any new requirement to determine who
of erroneous information to EMMA and displaying on the EMMA Web portal the
would create an undue burden and are the various obligated persons with
existence of a continuing disclosure respect to a particular offering. NABL
compliance risk for underwriters. ICI obligation, the names of any obligated
stated, however, that it believes that the also recommended that the definition of
persons other than the issuer, and the obligated person more closely mirror the
benefits to investors stemming from the deadline for submission of annual
original proposed rule change would definition thereof in Rule 15c2–12. The
financial and operating data, all as Connecticut Treasurer noted that, for
outweigh the perceived costs and risks, fielded information rather than merely
and that integrating and packaging the some issues, obligated persons can
as information provided within change over time and believed that it
proposed information would greatly documents, would provide significant
assist investors and potential investors was unclear whether the original
benefits to investors and other market proposed rule change accommodated
in monitoring their investments by participants.19 According to the MSRB,
easily identifying for them whether and this possibility.
the close proximity of this information In Amendment No. 1, the MSRB
when they should expect to have access to the links to posted continuing noted its view that collecting the
to key continuing disclosure disclosure documents on the EMMA identity of obligated persons in a fielded
information. Web portal would assist investors with manner that permits automated
RBDA distinguished the type of understanding whether and when they indexing and search functions is an
information currently required to be should expect to have access to key important feature that would make the
reported on Form G–32, characterized as continuing disclosure information in the EMMA Web portal considerably more
data necessary to create the database future and about whom such useful for users.23 The MSRB stated that
record of the issue on the EMMA information is expected to be such indexed information would assist
system, from the type of information provided.20 The MSRB stated that EMMA Web users in finding some or all
proposed to be collected in the investors and other market participants of the offerings for a particular obligated
proposed rule change, which RBDA would be able to include an assessment person, thereby allowing the user to
characterized as unnecessary for of ongoing access to information along review the continuing disclosure
creating the record in EMMA. SIFMA with other factors upon which they may undertakings that more fully spell out
stated that the continuing disclosure evaluate their investment decisions.21 how the continuing disclosure
undertaking is already required to be The MSRB remarked that it firmly obligations will be fulfilled.24
summarized in the official statement believes that the proposed rule change In Amendment No. 1, the MSRB
available through EMMA and that is within its statutory authority and proposes to modify the definition of
extracting information from the official noted that an MSRB rule change or obligated person in proposed Rule G–
15 See, e.g., RBDA Letter, SIFMA Letter, NABL
system requirement would not have the 32(d)(xiii) to more closely conform to
Letter, Connecticut Treasurer Letter.
effect of altering any obligations or the definition thereof in Rule 15c2–
16 See, e.g., NABL Letter, Connecticut Treasurer
Letter. 19 See Amendment No. 1, supra note 7. 22 Id.

17 See, e.g., RBDA Letter, SIFMA Letter. 20 Id. 23 Id.
18 See, e.g., SIFMA Letter. 21 Id. 24 Id.
12(f)(10) to avoid any definitional In Amendment No. 1, the MSRB Act requires, among other things, that
ambiguity. Furthermore, Amendment proposed a new alternative method for the MSRB’s rules be designed to prevent
No. 1 would modify Form G–32 to reporting the deadline for submissions fraudulent and manipulative acts and
explicitly provide that the obligated of annual financial and operating data practices, to promote just and equitable
persons to be identified are those that based on the disclosed end of fiscal principles of trade, to foster cooperation
are specifically identified in the year, so that underwriters could disclose and coordination with persons engaged
continuing disclosure undertaking. The as the submission deadline either a in regulating, clearing, settling,
MSRB emphasized that the specific date each year (i.e., month and processing information with respect to,
underwriter’s obligation is solely to day, such as June 30) or the number of and facilitating transactions in
provide the identities of those obligated days or months after the end of the municipal securities, to remove
persons who have a specific fiscal year (i.e., 120 days after the end impediments to and perfect the
commitment under the continuing of the fiscal year). The underwriter mechanism of a free and open market in
disclosure agreement to provide could use the day/month count municipal securities, and, in general, to
continuing disclosures. The MSRB alternative only if the underwriter also protect investors and the public
stated that underwriters would not be submits the day on which the issuer’s or interest.32 In particular, the Commission
required to undertake any independent obligated person’s fiscal year ends (i.e., finds that the proposed rule change is
analysis of what other persons might be month and day, such as June 30). Form consistent with the Exchange Act
covered, to submit descriptions of bases G–32 would be modified to allow for because it serves to remove
for determining future obligated submission of this new data element. impediments to and helps perfect the
persons, or to maintain the currency of mechanisms of a free and open market
Issuer/Obligated Person Contact
the list of obligated persons beyond the in municipal securities and would serve
Information
closing date.25 to promote the statutory mandate of the
The original proposed rule change MSRB to protect investors and the
Deadline for Annual Filing and End of would require the underwriter to
Fiscal Year public interest. The information that
provide, on amended Form G–32, underwriters would provide and that
The original proposed rule change contact information for a representative would be made available to the public
would require the underwriter to of the issuer and/or any obligated with regard to the continuing disclosure
provide, on amended Form G–32, the persons for purposes of establishing undertakings of issuers and obligated
date or dates identified in the continuing disclosure submission persons would assist investors in
continuing disclosure undertaking, accounts for such issuer and/or
understanding whether and when they
pursuant to Rule 15c2–12(b)(5)(ii)(C) or obligated persons in connection with
should expect to have access to key
otherwise, by which annual financial their submissions to the EMMA system.
continuing disclosure information in the
information is expected to be submitted The Connecticut Treasurer requested
future. Investors and other market
each year by the issuer and/or any that the current voluntary process for
participants would be able to include
obligated persons to the EMMA system. providing contact information for
such assessment of on-going access to
NABL recommended that the proposed representatives of the issuer or obligated
information in the mix of factors upon
Form G–32 be revised to list those dates person for purposes of establishing
which they may evaluate their
by which the issuer or those expressly EMMA submission accounts not be
investment decisions.
identified obligated persons who have made mandatory.
agreed to provide continuing disclosure The MSRB noted that its current The Commission believes that the
pursuant to the continuing disclosure voluntary process has been effective; MSRB has adequately responded to the
undertaking have agreed to provide therefore Amendment No. 1 would concerns expressed in the comment
such information, as opposed to dates eliminate from Form G–32 the letters. The Commission agrees with the
by which the data is expected to be requirement that underwriters provide MSRB that any additional burdens on
submitted. the contact information for a underwriters are outweighed by the
In Amendment No. 1, the MSRB representative of the issuer and/or any benefits of providing information to
stated that there is considerable value in obligated person.29 investors and other users in a user
providing the deadline for submission friendly manner. Investors, potential
IV. Discussion and Commission investors and other users of the EMMA
of annual financial information in a Findings
manner that is extracted from the system would not have to search
official statement.26 This would permit The Commission has carefully through official statements to locate
investors and the general public to considered the proposed rule change, continuing disclosure information. The
readily identify when such disclosures the comment letters received, and the type of information to be reported by
should become available from each MSRB’s responses to the comment underwriters pursuant to the proposal is
issuer or obligated person expected to letters and finds that the proposed rule not substantially different from other
provide the annual filings.27 The MSRB change is consistent with the information underwriters already
further noted that issuers and obligated requirements of the Exchange Act and submit to EMMA.
persons would be able to update the the rules and regulations thereunder Amendment No. 1 should adequately
timing requirement, as well as the applicable to the MSRB30 and, in address commenters’ concerns about the
identity of any obligated persons, particular, the requirements of Section definition and identification of
through EMMA as appropriate.28 15B(b)(2)(C) of the Exchange Act31 and obligated parties and the expected date
the rules and regulations thereunder. of filing of annual financial information.
25 Id. The MSRB indicated that issuers and Section 15B(b)(2)(C) of the Exchange The additional disclosure and
obligated persons would be able to make changes transparency made possible by this
to such information through their submission 29 Id.
proposal will serve to promote the
accounts established in connection with EMMA’s 30 In approving this proposed rule change, the
continuing disclosure service.
statutory mandate of the MSRB to
Commission notes that it has considered the
26 See Amendment No. 1, supra note 7.
proposed rule’s impact on efficiency, competition
protect investors and the public interest.
27 Id. and capital formation. 15 U.S.C. 78c(f).
28 Id. 31 15 U.S.C. 78o–4(b)(2)(C). 32 Id.
The proposed rule change, as SSA is soliciting comments on the offered three modes of communications
amended, will become effective on a accuracy of the agency’s burden for blind and visually impaired Social
date to be announced by the MSRB in estimate; the need for the information; Security recipients: (1) A standard print
a notice published on the MSRB Web its practical utility; ways to enhance its notice by first-class mail; (2) a standard
site, which date shall be no later than quality, utility, and clarity; and ways to print notice by first-class mail with a
one year after Commission approval of minimize burden on respondents, follow-up telephone call; and (3)
the proposed rule change and shall be including the use of automated certified mail. In American Council of
announced no later than sixty (60) days collection techniques or other forms of the Blind, the court required SSA to
prior to the effective date, as requested information technology. Mail, e-mail, or offer two additional modes of
by the MSRB in Amendment No. 2. fax your comments and communication to blind or visually
V. Conclusion recommendations on the information impaired applicants, beneficiaries,
collection(s) to the OMB Desk Officer recipients, and representative payees:
For the foregoing reasons, the and SSA Reports Clearance Director to (4) Braille, and (5) Microsoft Word files
Commission finds that the proposed the following addresses or fax numbers.
rule change, as amended, is consistent (on data compact discs).
(OMB) Office of Management and In American Council of the Blind, the
with the Exchange Act and the rules and
Budget, Attn: Desk Officer for SSA, court further ordered SSA to implement
regulations thereunder applicable to the
Fax: 202–395–6974, E-mail address: Section 504 through 45 CFR 85.51 of the
MSRB33 and, in particular, the
OIRA_Submission@omb.eop.gov
requirements of Section 15B(b)(2)(C) of Code of Federal Regulations (CFR)
the Exchange Act34 and the rules and (SSA) Social Security Administration, meaning SSA must ‘‘take appropriate
regulations thereunder. DCBFM, Attn: Director, Center for steps to ensure effective communication
It is therefore ordered, pursuant to Reports Clearance, 1333 Annex with applicants, participants, personnel
Section 19(b)(2) of the Exchange Act,35 Building, 6401 Security Blvd., of other Federal entities, and members
that the proposed rule change (SR– Baltimore, MD 21235, Fax: 410–965– of the public.’’ To meet the court’s
MSRB–2009–09), as amended, be, and it 0454, E-mail address: mandates, SSA uses Form SSA–9000,
hereby is, approved. OPLM.RCO@ssa.gov. Request for Accommodation in
For the Commission, by the Division of
I. The information collection below is Communication Method, to gather
Trading and Markets, pursuant to delegated pending at SSA. SSA will submit it to
information from blind or visually
authority.36 OMB within 60 days from the date of
impaired individuals about why their
Florence E. Harmon, this notice. To be sure we consider your
particular accommodation (other than
Deputy Secretary. comments, we must receive them no
the five accommodations already offered
later than August 2, 2010. Individuals
[FR Doc. 2010–13156 Filed 6–1–10; 8:45 am] by the agency) will allow SSA to
can obtain copies of the collection
BILLING CODE 8010–01–P communicate effectively with them.
instruments by calling the SSA Director
This form asks respondents to describe
for Reports Clearance at 410–965–0454
the type of accommodation they want,
or by writing to the above e-mail
SOCIAL SECURITY ADMINISTRATION to disclose the condition they have that
address.
1. Request for Accommodation in necessitates the need for a different type
Agency Information Collection of accommodation, and to explain why
Activities: Proposed Request and Communication Method—0960–0777.
In American Council of the Blind, et al. none of the five methods described
Comment Request above are sufficient for their needs. The
v. Michael Astrue and Social Security
Administration, class plaintiffs respondents are Social Security
The Social Security Administration
representing Social Security applicants, applicants, beneficiaries, recipients, and
(SSA) publishes a list of information
beneficiaries, recipients, and representative payees who are blind or
collection packages requiring clearance
by the Office of Management and representative payees who are blind or visually impaired and are asking SSA to
Budget (OMB) in compliance with visually impaired challenged the send them notices and other
Public Law (Pub. L.) 104–13, the adequacy of the communication communications in an alternative
Paperwork Reduction Act of 1995, methods SSA uses in its notices and method besides the five modalities we
effective October 1, 1995. This notice other communications. Prior to the describe in this notice.
includes revisions and extensions of court’s order of October 20, 2009 in Type of Request: Revision of an OMB-
OMB-approved information collections. American Council of the Blind, SSA approved information collection.
Number of Frequency Response time Burden

Method of information collection respondents of response (min.) (hours)
Personal Interview (over the phone or in-person) ........................................... 2,250 1 10 375

Form (taken or mailed from field office) .......................................................... 250 1 15 63
Total .......................................................................................................... 2,500 ........................ ........................ 438
II. SSA has submitted the information useful if OMB and SSA receive them no later than July 2, 2010. You can
collections listed below to OMB for within 30 days from the date of this obtain a copy of the OMB clearance
clearance. Your comments on the publication. To be sure we consider packages by calling the SSA Director for
information collections would be most your comments, we must receive them
33 In approving this proposed rule change, the proposed rule’s impact on efficiency, competition 35 15 U.S.C. 78s(b)(2).
Commission notes that it has considered the and capital formation. 15 U.S.C. 78c(f). 36 17 CFR 200.30–3(a)(12).
34 15 U.S.C. 78o–4(b)(2)(C).
Reports Clearance at 410–965–0454 or the information it collects on Forms United States. The respondents are
by writing to the above e-mail address. SSA–7161–OCR–SM and SSA–7162– individuals living outside the United
1. Report to United States Social OCR–SM to: (1) Determine continuing States who are receiving benefits on
Security Administration by Person entitlement to Social Security benefits; their own (or for someone else) under
Receiving Benefits for a Child or for an (2) correct benefit amounts for Title II of the Social Security Act.
Adult Unable to Handle Funds/Report beneficiaries outside the United States;
to the United States Social Security Type of Request: Revision of an OMB-
and (3) monitor the performance of
Administration—0960–0049. SSA uses representative payees outside the approved information collection.
Average bur- Estimated

Number of Frequency of den per
Form No. annual
respondents response response burden
(min.)
SSA–7161–OCR–SM ...................................................................................... 30,560 1 15 7,640

SSA–7162–OCR–SM ...................................................................................... 271,142 1 5 22,595
Total .......................................................................................................... 301,702 ........................ ........................ 30,235
2. Real Property Current Market Value home real property, is one of the operators in real estate, state and local
Estimate—0960–0471. SSA considers a eligibility requirements for SSI employees, and other individuals
person’s resources when evaluating payments. SSA obtains current market knowledgeable about local real estate
eligibility for Supplemental Security value estimates of the claimant’s real values.
Income (SSI) payments. The value of an property through Form SSA–L2794. The Type of Request: Revision of an OMB-
individual’s resources, including non- respondents are small business approved information collection.
Average Estimated
Number of Frequency of burden
Type of respondents annual burden
respondents response of response (hours)
(min.)
Small Business Operators in Real Estate ....................................................... 4,894 1 20 1,631

State and local government ............................................................................. 490 1 20 163
Individuals ........................................................................................................ 54 1 20 18
Total .......................................................................................................... 5,438 ........................ ........................ 1,812
3. Employer Verification of Earnings DEPARTMENT OF TRANSPORTATION fulfill the implementation study

After Death—20 CFR 404.821 and requirement. We are required to publish
404.822—0960–0472. When SSA Federal Highway Administration this notice in the Federal Register by
records show a wage earner is deceased [Docket No. FHWA–2010–0057] the Paperwork Reduction Act of 1995.
and an employer reported wages for the DATES: Please submit comments by
wage earner for a year subsequent to Agency Information Collection August 2, 2010.
death, SSA must contact the employer Activities: Request for Comments for a ADDRESSES: You may submit comments
and verify the reported wage and New Information Collection identified by DOT Docket ID Number
employee information. SSA uses Form 0057 by any of the following methods:
SSA–L4112 to verify that the wage AGENCY: Federal Highway
Administration (FHWA), Department of Web Site: For access to the docket to
information the employer previously read background documents or
submitted is correct for the employee Transportation.
comments received go to the Federal
and the year in question. The ACTION: Notice and request for
eRulemaking Portal: Go to http://
respondents are employers who report comments.
www.regulations.gov. Follow the online
wages for employees who have died. instructions for submitting comments.
SUMMARY: The U.S. Department of
Type of Request: Revision of an OMB- Transportation FHWA invites public Fax: 1–202–493–2251.
approved information collection. comments about our intention to request Mail: Docket Management Facility,
Number of Respondents: 50,000. the Office of Management and Budget’s U.S. Department of Transportation,
(OMB) approval for a new information West Building Ground Floor, Room
Frequency of Response: 1. W12–140, 1200 New Jersey Avenue, SE.,
collection: SAFETEA–LU Section 6009
Average Burden per Response: 10 Phase 2 Implementation Study Survey. Washington, DC 20590–0001.
minutes. The information to be collected for this Hand Delivery or Courier: U.S.
Estimated Annual Burden: 8,333 study will be used to satisfy a Department of Transportation, West
hours. Congressional mandate in the Safe, Building Ground Floor, Room W12–140,
Accountable, Flexible, Efficient 1200 New Jersey Avenue, SE.,

Date: May 26, 2010. Washington, DC 20590, between 9 a.m.
Transportation Equity Act: A Legacy for
John Biles, Users (SAFETEA–LU) to study and and 5 p.m., Monday through Friday,
Director, Office of Document Management, submit a Report to Congress on the except Federal holidays.
Social Security Administration. implementation of SAFETEA–LU FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2010–13092 Filed 6–1–10; 8:45 am] Section 6009 and its amendments. The Carol Braegelmann, FHWA Office of
BILLING CODE 4191–02–P survey results will allow U.S. DOT to Project Development and Environmental
Review, (202) 366–1701. Federal result. U.S. DOT will use the results to DEPARTMENT OF TRANSPORTATION
Highway Administration, Department of evaluate the effectiveness and any
Transportation, 1200 New Jersey resulting efficiencies of SAFETEA–LU Federal Aviation Administration
Avenue, SE., Washington, DC 20590. Section 6009 and its amendments.
Office hours are from 8:30 a.m. to 5 Notice of a Finding of No Significant
Respondents: The proposed survey Impact (FONSI) and Record of Decision
p.m., Monday through Friday, except
will be a web-based survey located on (ROD) on a Final Environmental
Federal holidays.
the Survey Monkey Web site (http:// Assessment (FEA) for the Proposed
SUPPLEMENTARY INFORMATION: www.surveymonkey.com). Staff Federal Action at the Macon County
Title: SAFETEA–LU Section 6009 members at state and local Airport, Franklin, NC
Phase 2 Implementation Study Survey. transportation agencies and
Background: Section 6009 of the Safe, AGENCY: Federal Aviation
transportation authorities, State Historic Administration, DOT.
Accountable, Flexible, Efficient
Preservation Offices (SHPO), Federal,
Transportation Equity Act: A Legacy for ACTION: Notice.
Users (SAFETEA–LU) amended existing State and local agencies with
Section 4(f) legislation to simplify the jurisdiction over park, recreation areas, SUMMARY: The FAA is issuing this notice
process and approval of projects that or wildlife and waterfowl refuges, and to advise the public of the approval of
have only de minimis impacts on lands citizen/advocacy groups will be asked to a FONSI/ROD on an FEA for a proposed
protected by Section 4(f). SAFETEA–LU complete the survey. U.S. DOT Federal action at the Macon County
also required the U.S. Department of estimates that approximately 120 Airport, Franklin, NC. The FONSI/ROD
Transportation (U.S. DOT) to participants (30 state DOTs, 15 transit states that the proposed projects are
promulgate regulations to clarify the and other transportation agencies, 25 consistent with the National
factors to be considered and the SHPOs, 25 park and recreation officials, Environmental Policy Act of 1969 and
standards to be applied in determining and 25 citizen groups) will complete the will not significantly affect the quality
the prudence and feasibility of survey. of the environment.
The FEA evaluated Macon County
alternatives that avoid uses of Section Frequency: This is a one-time Airport’s proposal to extend Runway 7/
4(f) properties. As mandated in the collection. 25 600 feet to a total length of 5,000 feet,
legislation, U.S. DOT conducted a study
Estimated Average Burden per extend the existing parallel taxiway, and
on the implementation of new Section
Response: Approximately 20 minutes construct a 300-foot runway safety area.
4(f) provisions and its amendments After reviewing the FEA, the FAA has
(herein referred to as Phase I). During per participant for the one-time survey.
determined that project would not
development of the Phase I study, U.S. Estimated Total Annual Burden significantly affect the quality of the
DOT determined that sufficient Hours: Approximately 40 hours. human environment. Therefore, the
information would not be available Public Comments Invited: You are preparation of an Environmental Impact
during Phase I to adequately evaluate asked to comment on any aspect of this Statement (EIS) is not required.
the new prudent and feasible standards. The FEA and the FONSI/ROD are
information collection, including: (1)
Based on this fact, along with available for review at:
Whether the proposed collection of
recommendations provided by the FAA Southern Region, Atlanta Airports
Transportation Research Board (TRB) on information is necessary for the U.S.
DOT’s performance, including whether District Office, 1701 Columbia
strengthening the Phase I findings, U.S. Avenue, Suite 2–260, College Park,
DOT is requesting approval to sponsor the information will have practical
utility; (2) the accuracy of the U.S. GA 30337.
a one-time survey on implementation of Macon County Courthouse, Tax
Section 6009 and its amendments. The DOT’s estimate of the burden of the
Collector’s Office, 5 West Main Street,
U.S. DOT and John A. Volpe National proposed information collection; (3)
Annex Bldg., Franklin, NC 28734–
Transportation Systems Center (Volpe ways to enhance the quality, usefulness,
3005.
Center) have designed the survey and and clarity of the collected information;
and (4) ways that the burden could be FOR FURTHER INFORMATION CONTACT:
will submit the survey plan and its
associated information collection minimized, including the use of Parks Preston, Federal Aviation
burden to OMB for approval. electronic technology, without reducing Administration, Atlanta Airports
The information collection supports the quality of the collected information. District Office, 1701 Columbia Ave.,
the U.S. DOT’s Environmental The agency will summarize and/or Campus Bldg., Suite 2–260, College
Stewardship Strategic Goal. U.S. DOT Park, GA 30337. 404–305–7149.
include your comments in the request
will be better able to evaluate how for OMB’s clearance of this information Issued in College Park, Georgia on May 19,
SAFETEA–LU Section 6009 may collection. 2010.
improve environmental decision- Scott L. Seritt,
Authority: The Paperwork Reduction Act
making and expedite environmental Manager, Atlanta Airports District Office.
of 1995; 44 U.S.C. Chapter 35, as amended;
reviews of transportation infrastructure [FR Doc. 2010–13260 Filed 6–1–10; 8:45 am]
and 49 CFR 1.48.
projects. The survey will solicit BILLING CODE 4910–13–P
information on: (1) The post- Issued On: May 27, 2010.
construction effectiveness of impact Juli Huynh,
mitigation and avoidance commitments Chief, Management Programs and Analysis DEPARTMENT OF TRANSPORTATION
adopted as part of projects where a Division.
Section 4(f) de minimis impact finding Federal Aviation Administration

[FR Doc. 2010–13226 Filed 6–1–10; 8:45 am]
or Section 4(f) finding under the revised
BILLING CODE 4910–22–P Fourth Meeting: RTCA Special
Section 4(f) regulations was made; and,
Committee 223: Airport Surface
(2) the processes developed to address
Wireless Communications
the Section 4(f) de minimis impacts and
revise the feasible and prudent AGENCY: Federal Aviation
standards and the efficiencies that may Administration (FAA), DOT.
ACTION: Notice of RTCA Special • USAS WG Status Report and Plenary DEPARTMENT OF TRANSPORTATION
Committee 223: Airport Surface Guidance
Wireless Communications meeting. • Establish Agenda, Date and Place for National Highway Traffic Safety
the next plenary meeting Administration
SUMMARY: The FAA is issuing this notice
• Review of Meeting summary report
to advise the public of a meeting of [Docket No. NHTSA–2010–0069]
• Adjourn—Expected by 3 p.m. on June
RTCA Special Committee 223: Airport 16th
Surface Wireless Communications. Fisker Automotive; Receipt of
Attendance is open to the interested Application for Temporary Exemption
DATES: The meeting will be held June public but limited to space availability. From Advanced Air Bag Requirements
15–16, 2010 from 9 a.m.–5 p.m. With the approval of the chairmen, of FMVSS No. 208
ADDRESSES: The meeting will be held at members of the public may present oral
RTCA, Inc., 1828 L Street, NW., Suite statements at the meeting. Persons AGENCY: National Highway Traffic
805, Washington, DC 20036. wishing to present statements or obtain Safety Administration (NHTSA),
FOR FURTHER INFORMATION CONTACT: information should contact the person Department of Transportation (DOT).
RTCA Secretariat, 1828 L Street, NW., listed in the FOR FURTHER INFORMATION ACTION: Notice of receipt of petition for
Suite 805, Washington, DC, 20036; CONTACT section. Members of the public temporary exemption from certain
telephone (202) 833–9339; fax (202) may present a written statement to the provisions of Federal Motor Vehicle
833–9434; Web site http://www.rtca.org. committee at any time. Safety Standard (FMVSS) No. 208,
SUPPLEMENTARY INFORMATION: Pursuant Issued in Washington, DC, on May 25, Occupant Crash Protection.
to section 10(a)(2) of the Federal 2010.
SUMMARY: In accordance with the
Advisory Committee Act (Pub. L. 92– Francisco Estrada C.,
463, 5 U.S.C., Appendix 2), notice is procedures in 49 CFR part 555, Fisker
RTCA Advisory Committee. Automotive Corporation has petitioned
hereby given for a RTCA Special [FR Doc. 2010–13142 Filed 6–1–10; 8:45 am]
Committee 223: Airport Surface the agency for a temporary exemption
Wireless Communications meeting. The
BILLING CODE 4910–13–P from certain advanced air bag
agenda will include: requirements of FMVSS No. 208. The
basis for the application is that
Tuesday, June 15, 2010 DEPARTMENT OF TRANSPORTATION compliance would cause substantial
Tuesday Morning—Plenary economic hardship to a manufacturer
Federal Motor Carrier Safety
that has tried in good faith to comply
• Opening Session (Welcome, Administration
with the standard.1
Introductions, Administrative This notice of receipt of an
Remarks, Approve/Review Meeting Sunshine Act Meetings; Unified Carrier
Registration Plan Board of Directors application for temporary exemption is
#3 Summary, RTCA Paper No. 084– published in accordance with statutory
10/SC223–007) AGENCY: Federal Motor Carrier Safety provisions. NHTSA has not made any
• Special Committee Leadership Administration (FMCSA), DOT. judgment on the merits of the
• Designated Federal Official (DFO): Time and Date: June 9, 2010, 8 a.m. application.
Mr. Brent Phillips until 12 Noon, Mountain Daylight Time.
• Co-Chair: Mr. Aloke Roy, Place: This meeting will take place
DATES: You should submit your
Honeywell International comments not later than July 2, 2010.
telephonically. Any interested person
• Co-Chair: Mr. Ward Hall, ITT FOR FURTHER INFORMATION CONTACT:
may call Place: This meeting will take
Corporation Edward Glancy, Office of the Chief
place at the Hotel Park City, 2001 Park
• Agenda Overview Counsel, NCC–112, National Highway
• AeroMACS Profile Working Group Avenue, Park City, UT 84060. Any
interested person may call Mr. Avelino Traffic Safety Administration, 1200 New
Status Jersey Avenue, SE., West Building 4th
• AeroMACS User Services & Gutierrez at (505) 827–4565 to receive
the toll free number and pass code Floor, Room W41–326, Washington, DC
Applications Ad-Hoc Working 20590. Telephone: (202) 366–2992; Fax:
Group Status needed to participate in this meeting by
telephone. (202) 366–3820.
• 3rd Plenary action item status Comments: We invite you to submit
• Assignment of MOPS working group Status: Open to the public.
comments on the application described
leader MATTERS TO BE CONSIDERED: The Unified above. You may submit comments
• AeroMACS test and evaluation Carrier Registration Plan Board of identified by docket number at the
interim results Directors (the Board) will continue its heading of this notice by any of the
work in developing and implementing following methods:
Tuesday Afternoon—Profiles WG
the Unified Carrier Registration Plan • Web Site: http://
Breakout Session
and Agreement and to that end, may www.regulations.gov. Follow the
• Document Structure consider matters properly before the instructions for submitting comments
• Technical work on AeroMACS Profile Board. on the electronic docket site by clicking
Wednesday, June 16, 2010 FOR FURTHER INFORMATION CONTACT: Mr. on ‘‘Help and Information’’ or ‘‘Help/
Avelino Gutierrez, Chair, Unified Info.’’
Wednesday Morning—User Services &
Carrier Registration Board of Directors at • Fax: 1–202–493–2251.
Applications (USAS) Breakout Session
(505) 827–4565. • Mail: U.S. Department of
• User services and applications Transportation, Docket Operations, M–

Issued on: May 28, 2010.
definition 30, Room W12–140, 1200 New Jersey
Larry W. Minor,
Wednesday Afternoon—Reconvene Avenue, SE., Washington, DC 20590.
Associate Administrator for Policy and
Plenary Program Development.
1 To view the application, go to http://
• Profiles WG Status Report and [FR Doc. 2010–13396 Filed 5–28–10; 4:15 pm] www.regulations.gov and enter the docket number
Plenary Guidance BILLING CODE 4910–EX–P set forth in the heading of this document.
• Hand Delivery: 1200 New Jersey Fisker Automotive (Fisker) has experienced outside companies, and
Avenue, SE., West Building Ground submitted a petition for exemption from that the air bag development costs
Floor, Room W12–140, Washington, DC, certain requirements of FMVSS No. 208, represent a very significant expenditure
between 9 am and 5 pm, Monday Occupant Crash Protection, pursuant to to the company. It cited a $7,714,857
through Friday, except Federal 49 CFR Part 555, Temporary Exemption cost figure, and provided information
Holidays. from Motor Vehicle Safety and Bumper about what that figure includes. Fisker
• Federal eRulemaking Portal: Go to Standards. Specifically, the petition stated that without a temporary
http://www.regulations.gov. Follow the requests an exemption from paragraphs exemption, which would enable the
online instructions for submitting S15, S17, S19, S21, S23, and S25 of company to generate funds through the
comments. FMVSS No. 208, which relate to the sale of vehicles, it may not be able to
Instructions: All submissions must advanced air bag requirements. Fisker sustain the air bag and vehicle
include the agency name and docket has requested an exemption for the development programs, causing
number. Note that all comments Karma model, and that the exemption substantial financial economic hardship
received will be posted without change period run from the date of the grant to the company. Fisker stated that it
to http://www.regulations.gov, including until May 24, 2011. estimates that full compliance with
any personal information provided. In recent years, NHTSA has addressed FMVSS No. 208 will be achieved before
Please see the Privacy Act discussion a number of petitions for exemption May 24, 2011.
below. We will consider all comments from the advanced air bag requirements
received before the close of business on of FMVSS No. 208. The majority of The petitioner stated that if the
the comment closing date indicated these requests have come from small exemption petition is approved, the
above. To the extent possible, we will manufacturers which have petitioned on Karma models sold under the
also consider comments filed after the the basis of substantial economic exemption will be compliant with all
closing date. hardship to a manufacturer that has FMVSS regulations with the exception
Docket: For access to the docket to tried in good faith to comply with the of certain sections of FMVSS No. 208.
read background documents or standard. NHTSA has granted a number Fisker stated that the coupe version will
comments received, go to http:// of these petitions, usually in situations be equipped with eight functional air
www.regulations.gov at any time or to where the manufacturer is supplying bags (front, side, knee and curtain air
1200 New Jersey Avenue, SE., West standard air bags in lieu of advanced air bags), and the convertible version will
Building Ground Floor, Room W12–140, bags.2 In addressing these petitions, be equipped with six functional air bags
Washington, DC 20590, between 9 am NHTSA has recognized that small (front, side and knee air bags). Both
and 5 pm, Monday through Friday, manufacturers may face particular versions will include seat belts with
except Federal Holidays. Telephone: difficulties in acquiring or developing pretensioners and load limiters. Also,
(202) 366–9826. advanced air bag systems. according to the petitioner, both models
Privacy Act: Anyone is able to search The basis for Fisker’s application is will be compliant with the 50th
the electronic form of all comments substantial economic hardship to a percentile unbelted test requirements
received into any of our dockets by the manufacturer that has tried in good faith contained in section 13 of the standard.
name of the individual submitting the to comply with the standard. According
Fisker argued that sales of the Karma
comment (or signing the comment, if to the petition, Fisker is a privately held
are in the public interest. It stated that
submitted on behalf of an association, company incorporated in the State of
the Karma ‘‘is leading the way towards
business, labor union, etc.). You may Delaware, with headquarters in
the introduction of advanced low-
review DOT’s complete Privacy Act California. Its total motor vehicle
emission vehicle technologies to the US
Statement in the Federal Register production during the 12 months
and world markets.’’ Fisker stated that
published on April 11, 2000 (Volume preceding the filing of the petition was
the Karma will be the first plug-in
65, Number 70; Pages 19477–78) or you 0 vehicles.
The petitioner stated that the Fisker hybrid passenger car available for
may visit http://www.dot.gov/ purchase by the general public. It also
privacy.html. Karma is a completely new passenger
car model. Design and development of cited benefits of employment
Confidential Business Information: If opportunities.
you wish to submit any information the Karma began in late 2007. The
under a claim of confidentiality, you Karma is being designed and developed Upon receiving a petition, NHTSA
should submit three copies of your to meet all applicable FMVSS and EEC conducts an initial review of the
complete submission, including the regulations, including the installation of petition with respect to whether the
information you claim to be confidential eight air bags on the coupe version and petition is complete and whether the
business information, to the Chief six air bags on the convertible version. petitioner appears to be eligible to apply
Counsel, NHTSA, at the address given Fisker stated the air bag system is being for the requested petition. The agency
under FOR FURTHER INFORMATION developed through cooperation with has tentatively concluded that the
CONTACT. In addition, you should Takata, Tass, and Bosch, which have petition is complete and the petitioner
submit two copies, from which you been granted contracts to complete the eligible to apply for the requested
have deleted the claimed confidential development of the air bag systems. The petition. The agency has not made any
business information, to Docket petitioner stated that these companies judgment on the merits of the
Management at the address given above. were retained in 2008/2009 and are application, and is placing a non-
When you send a comment containing continuing the efforts to develop an air confidential copy of the petition in the
information claimed to be confidential bag system that is fully compliant with docket.
business information, you should the requirements of FMVSS No. 208. We are providing a 30-day comment
include a cover letter setting forth the Fisker stated that it subcontracted the
period. After considering public
information specified in our advanced air bag system development to
comments and other available
confidential business information 2 See, e.g., grant of petition to Panoz, 72 FR 28759
information, we will publish a notice of
regulation (49 CFR part 512). (May 22, 2007), or grant of petition to Koenigsegg, final action on the application in the
SUPPLEMENTARY INFORMATION: 72 FR 17608 (April 9, 2007). Federal Register.
Issued on: May 26, 2010. large percentage of roads classified as and review of the resulting
Stephen R. Kratzke, principal arterial highways and roads environmental documents. A resource/
Associate Administrator for Rulemaking. important for national defense. The regulatory agency meeting is scheduled
[FR Doc. 2010–13122 Filed 6–1–10; 8:45 am] NHS includes 5 percent of the national for May 17, 2010 to re-initiate agency
roadway network but serves participation again as FHWA continues
approximately 40 percent of the nation’s with the development of the SDEIS,
highway travel. U.S. 231 is also a part Final EIS, and Record of Decision. This
DEPARTMENT OF TRANSPORTATION of the National Truck Network, a agency meeting will be held to solicit
national network of highways that input from the resource and regulatory
Federal Highway Administration allows the passage of trucks of specified
agencies on the nature and extent of
minimum dimensions and weight.
Supplemental Draft Environmental Designated as a Regional Mobility issues, concerns and potential impacts
Impact Statement; U.S. 231 Dubois Corridor and Commerce Corridor, U.S. to be addressed in the SDEIS, including
County, IN 231 serves as a connection to smaller methods by which they will be
cities and regions, feeds traffic to the evaluated and discuss any changes since
AGENCY: Federal Highway the release of the 2004 DEIS. A public
major mobility corridors and provides
Administration (FHWA), DOT. for regional accessibility. As a information meeting will be conducted
ACTION: Notice of intent. Commerce Corridor, U.S. 231 directly in the City of Huntingburg in the
facilitates intrastate, interstate or summer of 2010, re-initiating the public
SUMMARY: The Federal Highway
international commerce or travel. scoping process on the SDEIS, which
Administration (FHWA), in cooperation
Approximately 12 mi of existing U.S. will be widely publicized well in
with the Indiana Department (INDOT),
231 through Dubois County is rural 2- advance of the meeting. Comments,
is issuing this notice to advise the
lane roadway. The roadway becomes 3- questions, and suggestions related to the
public that FHWA will prepare a
or 4-lane through Huntingburg and project and potential environmental
Supplemental Draft Environmental
Jasper and is a north-south arterial that concerns are invited from all interested
Impact Statement (SDEIS) for the U.S. divides both communities. Traffic flow
231 Jasper Huntingburg project in agencies and the public at large to
in Huntingburg is affected by delays at ensure that the full range of issues
Dubois County, Indiana. an at-grade railroad crossing. In Jasper,
Since publication of the 2004 U.S. 231 related to the proposed action and all
U.S. 231 makes two right-angle turns, reasonable alternatives are considered
Draft EIS in March 2004, FHWA and both of which have substandard corner
INDOT has continued to evaluate the and all significant issues are identified.
radii and are difficult for larger vehicles
project and has developed additional These comments, questions, and
to negotiate.
alternatives for consideration. The In March 2004, FHWA released the suggestions should be forwarded to the
SDEIS will re-evaluate the Preferred U.S. 231 Draft EIS. FHWA and INDOT address listed above. Notices of
Alternative identified in the 2004 U.S. have continued to evaluate the project availability for the Supplemental Draft
231 DEIS and compare those impacts to and have developed additional EIS, Final EIS, and Record of Decision
the additional build alternatives. The alternatives for consideration and a will be provided through direct mail,
SDEIS will focus on the project Final EIS has not been released within the Federal Register and other media.
modifications, the existing environment three years of the publication of the Notification also will be sent to Federal,
and impacts, and any new information Draft EIS. The SDEIS will re-evaluate State, local agencies, persons, and
that has developed since the 2004 DEIS the Preferred Alternative identified in organizations that submit comments or
as required by 23 CFR 771.130. the 2004 U.S. 231 DEIS and compare questions. Precise schedules and
DATES: Comments on the scope of the those impacts to the additional build locations for public meetings will be
SDEIS for the proposed project should alternatives. The SDEIS will focus on announced in the local news media.
be forwarded no later than July 2, 2010. the project modifications, the existing Interested individuals and organizations
ADDRESSES: Address all comments environment and impacts, and any new may request to be included on the
concerning this notice to Tim Miller, information that has developed since mailing list for the distribution of
Environmental Manager, HNTB Indiana, the 2004 DEIS as required by 23 CFR meeting announcements and associated
Inc., 111 Monument Circle, Suite 1200, 771.130. information.
Indianapolis, IN 46204, Telephone: Environmental Issues: Possible
(317) 636–4682, E-mail: environmental impacts include (Catalog of Federal Domestic Assistance
tnmiller@hntb.com. viewshed impacts, impacts to water Program No. 20.205, Highway Planning and
resources, wetlands, farmed wetlands, Construction. The regulations implementing
FOR FURTHER INFORMATION CONTACT: prime farmland, sensitive biological Executive Order 12372 regarding
Janice Osadczuk, Planning/ species and habitat, land use intergovernmental consultation on Federal
Environmental Specialist, Federal compatibility impacts, impacts to programs and activities apply to the
Highway Administration, Indiana agricultural lands, displacement of program.)
Division, 575 North Pennsylvania commercial and residential properties, Authority: 23 U.S.C. 31.5; 23 CFR 771.123;
Street, Room 254, Indianapolis, Indiana, and potential effects to historical 49 CFR 1.48.
Telephone: (317) 226–7486. properties or archaeological sites.
SUPPLEMENTARY BACKGROUND Alternatives: The SDEIS will consider Robert F. Tally,
INFORMATION: U.S. 231 extends alternatives that include: (1) Taking no Division Administrator, Indianapolis,
approximately 304 mi from U.S. 60 in action; (2) re-evaluation of the Preferred Indiana.
Owensboro, Kentucky, north through Alternative identified in the 2004 DEIS; [FR Doc. 2010–13103 Filed 6–1–10; 8:45 am]
Indiana to U.S. 41 near the Illinois and (3) additional build alternatives not BILLING CODE 4910–22–M
border. Due to the importance of the previously identified in the 2004 DEIS.
route, U.S. 231 is included in the Public and Agency Scoping and
National Highway System (NHS). The Comment: FHWA encourages continued
NHS includes all Interstate routes, a broad participation in the SDEIS process
DEPARTMENT OF TRANSPORTATION With the approval of the chairman, correctly compute their federal
members of the public may present oral telephone excise tax refund and the
Federal Aviation Administration statements at the meeting. Persons interest due on the refund.
wishing to present statements or obtain Current Actions: Notice 2007–11 is
Tenth Meeting: RTCA Special information should contact the person
Committee 209: In Joint Session With replacing Notice 2006–50.
listed in the FOR FURTHER INFORMATION
EUROCAE WG 49: ATCRBS/Mode S CONTACT section. Members of the public Type of Review: Revision of a
Transponder MOPS Maintenance may present a written statement to the currently approved collection.
AGENCY: Federal Aviation committee at any time. Affected Public: Business or other for-
Administration (FAA), DOT. Issued in Washington, DC on May 25, profit, individuals or households, not-
ACTION: Notice of RTCA Special 2010. for-profit institutions and farms.
Committee 209: In Joint Session with Francisco Estrada C., Estimated Number of Respondents:
EUROCAE WG–49 ATCRBS/Mode S RTCA Advisory Committee. 100.
Transponder MOPS Maintenance. [FR Doc. 2010–13140 Filed 6–1–10; 8:45 am]
Estimated Time per Respondent: 14
SUMMARY: The FAA is issuing this notice hours, 50 minutes.
to advise the public of a meeting of Estimated Total Annual Burden
RTCA Special Committee 209: In Joint
DEPARTMENT OF THE TREASURY Hours: 1,484.
Session with EUROCAE WG–49
ATCRBS/Mode S Transponder MOPS The following paragraph applies to all
Maintenance. Internal Revenue Service of the collections of information covered
by this notice:
DATES: The meeting will be held June Proposed Collection; Comment
28–30, 2010 from 9 a.m.–5 p.m. CET. Request for Form 8913 An agency may not conduct or
ADDRESSES: The meeting will be held at sponsor, and a person is not required to
AGENCY: Internal Revenue Service (IRS), respond to, a collection of information
the EUROCAE Headquarters, Malakoff,
Treasury. unless the collection of information
France near Paris Host Contact: Roland
Mallwitz, +33–01–40927930, ACTION: Notice and request for displays a valid OMB control number.
roland.mallwitz@eurocae.net Secretary comments. Books or records relating to a collection
Contact: Gary Furr 1–609–485–4254, of information must be retained as long
SUMMARY: The Department of the
gary.ctr.furr@faa.gov. as their contents may become material
Treasury, as part of its continuing effort
in the administration of any internal
to reduce paperwork and respondent
RTCA Secretariat, 1828 L Street, NW., revenue law. Generally, tax returns and
burden, invites the general public and
Suite 805, Washington, DC 20036–5133; other Federal agencies to take this tax return information are confidential,
telephone (202) 833–9339; fax (202) opportunity to comment on proposed as required by 26 U.S.C. 6103.
833–9434; Web site http://www.rtca.org. and/or continuing information Request for Comments: Comments
SUPPLEMENTARY INFORMATION: Pursuant collections, as required by the submitted in response to this notice will
to section 10(a)(2) of the Federal Paperwork Reduction Act of 1995, be summarized and/or included in the
Advisory Committee Act (Pub. L. 92– Public Law 104–13 (44 U.S.C. request for OMB approval. All
463, 5 U.S.C., Appendix 2), notice is 3506(c)(2)(A)). comments will become a matter of
hereby given for a RTCA Special Currently, the IRS is soliciting public record.
Committee 209: In Joint Session with comments concerning Form 8913,
Comments are invited on: (a) Whether
EUROCAE WG–49 ATCRBS/Mode S Credit for Federal Telephone Excise Tax
the collection of information is
Transponder MOPS Maintenance Paid.
necessary for the proper performance of
meeting. The agenda will include: DATES: Written comments should be the functions of the agency, including
• Opening Session (Host and Co- received on or before August 2, 2010 to whether the information shall have
Chairs Welcome, Introductions and be assured of consideration. practical utility; (b) the accuracy of the
Remarks). ADDRESSES: Direct all written comments agency’s estimate of the burden of the
• Review and Approval of the Agenda to Gerald Shields, Internal Revenue
(SC209–WP10–01). collection of information; (c) ways to
Service, Room 6129, 1111 Constitution enhance the quality, utility, and clarity
• Discussion of Issues Related to Avenue, NW., Washington, DC 20224.
Proposed Changes to DO–181D/ED–73C. of the information to be collected; (d)
FOR FURTHER INFORMATION CONTACT: ways to minimize the burden of the
• WP10–02—Comments Related to
Proposed Changes to DO–181D. Requests for additional information or collection of information on
• WP10–03—Low Power copies of the form should be directed to respondents, including through the use
Transponder and Glider Surveillance Elaine Christophe, (202) 622–3179, or at of automated collection techniques or
Avionics. Internal Revenue Service, Room 6129, other forms of information technology;
• WP10–04—Issues Related to the 1111 Constitution Avenue, NW., and (e) estimates of capital or start-up
Timeouts of Registers 0816 and 2016. Washington, DC 20224, or through the costs and costs of operation,
• Development of the Actual Change Internet, at Elaine.H.Christophe@irs.gov. maintenance, and purchase of services
Documents for DO–181D and ED–73C. SUPPLEMENTARY INFORMATION: to provide information.

• Date, Place and Time of any Future Title: Credit for Federal Telephone Approved: May 25, 2010.
Meetings. Excise Tax Paid.
Gerald Shields,
• Other Business. OMB Number: 1545–2051.
• Adjournment. Form Number: 8913. IRS Reports Clearance Officer.
Attendance is open to the interested Abstract: The information on Form [FR Doc. 2010–13234 Filed 6–1–10; 8:45 am]
public but limited to space availability. 8913 will allow filers of the form to BILLING CODE 4830–01–P
DEPARTMENT OF THE TREASURY Current Actions: There is no change to ACTION: Notice and request for
this existing regulation. comments.
Internal Revenue Service Type of Review: Extension of a
currently approved collection. SUMMARY: The Department of the
[CO–11–91] (TD 8597); [CO–24–95] (TD8660) Treasury, as part of its continuing effort
Affected Public: Business or other for-
profit organizations. to reduce paperwork and respondent
Proposed Collection; Comment
Estimated Number of Respondents: burden, invites the general public and
Request for Regulation Project other Federal agencies to take this
2,200.
AGENCY: Internal Revenue Service (IRS), Estimated Time per Respondent: 30 opportunity to comment on proposed
Treasury. minutes. and/or continuing information
ACTION: Notice and request for Estimated Total Annual Burden collections, as required by the
comments. Hours: 1,050. Paperwork Reduction Act of 1995,
The following paragraph applies to all Public Law 104–13 (44 U.S.C.
SUMMARY: The Department of the of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is
Treasury, as part of its continuing effort by this notice: soliciting comments concerning an
to reduce paperwork and respondent An agency may not conduct or existing notice of proposed rulemaking,
burden, invites the general public and sponsor, and a person is not required to INTL–870–89, Earnings Stripping
other Federal agencies to take this respond to, a collection of information (Section 163(j)).
opportunity to comment on proposed unless the collection of information DATES: Written comments should be
and/or continuing information displays a valid OMB control number. received on or before August 2, 2010 to
collections, as required by the Books or records relating to a collection be assured of consideration.
Paperwork Reduction Act of 1995, of information must be retained as long ADDRESSES: Direct all written comments
Public Law 104–13 (44 U.S.C. as their contents may become material to Gerald Shields, Internal Revenue
3506(c)(2)(A)). in the administration of any internal Service, Room 6129, 1111 Constitution
Currently, the IRS is soliciting revenue law. Generally, tax returns and Avenue, NW., Washington, DC 20224.
comments concerning existing final tax return information are confidential, FOR FURTHER INFORMATION CONTACT:
regulations, CO–11–91 (TD 8597), as required by 26 U.S.C. 6103. Requests for additional information or
Consolidated Groups and Controlled Request for Comments: Comments copies of the regulations should be
Groups-Intercompany Transactions and submitted in response to this notice will directed to Elaine Christophe, (202)
Related Rules (§ 1.1502–13), and CO– be summarized and/or included in the 622–3179, or at Internal Revenue
24–95 (TD 8660), Consolidated Groups- request for OMB approval. All Service, Room 6129, 1111 Constitution
Intercompany Transactions and Related comments will become a matter of Avenue NW., Washington, DC 20224, or
Rules. public record. through the Internet, at
DATES: Written comments should be
Comments are invited on: (a) Whether
Elaine.H.Christophe@irs.gov.
received on or before August 2, 2010 to the collection of information is
necessary for the proper performance of SUPPLEMENTARY INFORMATION:
be assured of consideration. Title: Earnings Stripping (Section
the functions of the agency, including
ADDRESSES: Direct all written comments 163(j)).
whether the information shall have
to Gerald Shields, Room 6129, 1111 practical utility; (b) the accuracy of the OMB Number: 1545–1255.
Constitution Avenue, NW., Washington, agency’s estimate of the burden of the Regulation Project Number: INTL–
DC 20224. 870–89.
collection of information; (c) ways to Abstract: Internal Revenue Code
FOR FURTHER INFORMATION CONTACT: enhance the quality, utility, and clarity
Requests for additional information or section 163(j) concerns the limitation on
of the information to be collected; (d) the deduction for certain interest paid
copies of the regulation should be ways to minimize the burden of the
directed to Elaine Christophe, (202) by a corporation to a related person.
collection of information on This provision generally does not apply
622–3179, or at Internal Revenue respondents, including through the use
Service, Room 6129, 1111 Constitution to an interest expense arising in a
of automated collection techniques or taxable year in which the payer
Avenue, NW., Washington, DC 20224, other forms of information technology;
or through the Internet, at corporation’s debt-equity ratio is 1.5 to
and (e) estimates of capital or start-up 1 or less. Regulation section § 1.163(j)–
Elaine.H.Christophe@irs.gov. costs and costs of operation, 5(d) provides a special rule for adjusting
SUPPLEMENTARY INFORMATION: maintenance, and purchase of services the basis of assets acquired in a
Title: CO–11–91, Consolidated Groups to provide information. qualified stock purchase. This rule
and Controlled Groups-Intercompany Approved: May 25, 2010. allows the taxpayer, in computing its
Transactions and Related Rules, and Gerald Shields, debt-equity ratio, to elect to write off the
CO–24–95, Consolidated Groups- IRS Reports Clearance Officer. basis of the stock of the acquired
Intercompany Transactions and Related corporation over a fixed stock write-off
[FR Doc. 2010–13236 Filed 6–1–10; 8:45 am]
Rules. period, instead of using the adjusted
OMB Number: 1545–1433. basis of the assets of the acquired
Regulation Project Number: CO–11– corporation.
91 (TD 8597). CO–24–95 (TD 8660). DEPARTMENT OF THE TREASURY Current Actions: There is no change to
Abstract: The regulations require this existing regulation.
common parents that make elections Internal Revenue Service Type of Review: Extension of a
under regulation section 1.1502–13 to currently approved collection.

provide certain information. The [INTL–870–89]
Affected Public: Business or other for-
information will be used to identify and profit organizations.
Proposed Collection; Comment
assure that the amount, location, timing Estimated Number of Respondents:
Request for Regulation Project
and attributes of intercompany 2,300.
transactions and corresponding items AGENCY: Internal Revenue Service (IRS), Estimated Time per Respondent: 31
are properly maintained. Treasury. minutes.
Estimated Total Annual Burden and/or continuing information are confidential, as required by 26
Hours: 1,196. collections, as required by the U.S.C. 6103.
The following paragraph applies to all Paperwork Reduction Act of 1995, Request for Comments: Comments
the collections of information covered Public Law 104–13 (44 U.S.C. submitted in response to this notice will
by this notice: 3506(c)(2)(A)). be summarized and/or included in the
An agency may not conduct or Currently, the IRS is soliciting request for OMB approval. All
sponsor, and a person is not required to comments concerning an existing comments will become a matter of
respond to, a collection of information temporary regulation, LR–77–86 public record.
unless the collection of information (T.D. 8124), Certain Elections Under the Comments are invited on: (a) Whether
displays a valid OMB control number. Tax Reform Act of 1986 (§ 5h.5). the collection of information is
Books or records relating to a collection DATES: Written comments should be necessary for the proper performance of
of information must be retained as long received on or before August 2, 2010 to the functions of the agency, including
as their contents may become material be assured of consideration. whether the information shall have
in the administration of any internal ADDRESSES: Direct all written comments practical utility; (b) the accuracy of the
revenue law. Generally, tax returns and to Gerald Shields, Internal Revenue agency’s estimate of the burden of the
tax return information are confidential, Service, Room 6129, 1111 Constitution collection of information; (c) ways to
as required by 26 U.S.C. 6103. Avenue, NW., Washington, DC 20224. enhance the quality, utility, and clarity
Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: of the information to be collected;
submitted in response to this notice will Requests for additional information or (d) ways to minimize the burden of the
be summarized and/or included in the copies of the regulation should be collection of information on
request for OMB approval. All directed to Elaine Christophe, (202) respondents, including through the use
comments will become a matter of 622–3179, or at Internal Revenue of automated collection techniques or
public record. Service, Room 6129, 1111 Constitution other forms of information technology;
Comments are invited on: (a) Whether Avenue, NW., Washington, DC 20224, and (e) estimates of capital or start-up
the collection of information is or through the Internet, at costs and costs of operation,
necessary for the proper performance of Elaine.H.Christophe@irs.gov. maintenance, and purchase of services
the functions of the agency, including to provide information.
whether the information shall have SUPPLEMENTARY INFORMATION:
Title: Certain Elections Under the Tax Approved: May 25, 2010.
practical utility; (b) the accuracy of the Gerald Shields,
agency’s estimate of the burden of the Reform Act of 1986.
OMB Number: 1545–0982. IRS Reports Clearance Officer.
collection of information; (c) ways to
enhance the quality, utility, and clarity Regulation Project Numbers: LR–77– [FR Doc. 2010–13240 Filed 6–1–10; 8:45 am]
of the information to be collected; 86 (T.D. 8124). BILLING CODE 4830–01–P
(d) ways to minimize the burden of the Abstract: Section 5h.5(a) of this
collection of information on regulation sets forth general rules for the
respondents, including through the use time and manner of making various DEPARTMENT OF THE TREASURY
of automated collection techniques or elections under the Tax Reform Act of
1986. The regulation enables taxpayers Internal Revenue Service
other forms of information technology;
and (e) estimates of capital or start-up to take advantage of various benefits
costs and costs of operation, provided by the Internal Revenue Code. [LR–209–76]
Current Actions: There are no changes
maintenance, and purchase of services Proposed Collection; Comment
to this existing regulation.
to provide information. Request for Regulation Project
Type of review: Extension of OMB
Approved: May 25, 2010. approval.
AGENCY: Internal Revenue Service (IRS),
Gerald Shields, Affected Public: Individuals or
households, business or other for-profit Treasury.
IRS Reports Clearance Officer.
[FR Doc. 2010–13238 Filed 6–1–10; 8:45 am] organizations, not-for-profit institutions, ACTION: Notice and request for
BILLING CODE 4830–01–P Farms, and State, Local, or Tribal comments.
Governments.
Estimated Number of Respondents:
114,710. Treasury, as part of its continuing effort
DEPARTMENT OF THE TREASURY
Estimated Time per Respondent: 15 to reduce paperwork and respondent
Internal Revenue Service minutes. burden, invites the general public and
Estimated Total Annual Burden other Federal agencies to take this
[LR–77–86] opportunity to comment on proposed
Hours: 28,678.
The following paragraph applies to all and/or continuing information
Proposed Collection; Comment collections, as required by the
Request for Regulation Project of the collections of information covered
by this notice: Paperwork Reduction Act of 1995,
AGENCY: Internal Revenue Service (IRS), An agency may not conduct or Public Law 104–13 (44 U.S.C.
Treasury. sponsor, and a person is not required to 3506(c)(2)(A)). Currently, the IRS is
respond to, a collection of information soliciting comments concerning an
ACTION: Notice and request for
unless the collection of information existing final regulation, LR–209–76 (TD
comments.
displays a valid OMB control number. 7941), Special Lien for Estate Taxes
SUMMARY: The Department of the Books or records relating to a Deferred Under Section 6166 or 6166A
Treasury, as part of its continuing effort collection of information must be (Section 301.6324A–1). Notice 2007–90
to reduce paperwork and respondent retained as long as their contents may provides additional guidance.
burden, invites the general public and become material in the administration DATES: Written comments should be
other Federal agencies to take this of any internal revenue law. Generally, received on or before August 2, 2010 to
opportunity to comment on proposed tax returns and tax return information be assured of consideration.
ADDRESSES: Direct all written comments the functions of the agency, including Title: Election of Reduced Research
to Gerald Shields, Internal Revenue whether the information shall have Credit.
Service, Room 6129, 1111 Constitution practical utility; (b) the accuracy of the OMB Number: 1545–1155.
Avenue, NW., Washington, DC 20224. agency’s estimate of the burden of the Regulation Project Number: PS–74–89
FOR FURTHER INFORMATION CONTACT: collection of information; (c) ways to (T.D. 8282).
Requests for additional information or enhance the quality, utility, and clarity Abstract: This regulation relates to the
copies of the regulations should be of the information to be collected; (d) manner of making an election under
directed to Elaine Christophe, (202) ways to minimize the burden of the section 280C(3) of the Internal Revenue
622–3179, or at Internal Revenue collection of information on Code. This election enables a taxpayer
Service, Room 6129, 1111 Constitution respondents, including through the use to claim a reduced income tax credit for
Avenue, NW., Washington, DC 20224, of automated collection techniques or increasing research activities and
or through the Internet, at other forms of information technology; thereby avoid a reduction of the section
Elaine.H.Christophe@irs.gov. and (e) estimates of capital or start-up 174 deduction for research and
costs and costs of operation, experimental expenditures.
SUPPLEMENTARY INFORMATION: maintenance, and purchase of services
Title: Special Lien for Estate Taxes Current Actions: There is no change to
to provide information.
Deferred Under Section 6166 or 6166A. this existing regulation.
OMB Number: 1545–0757. Approved: May 25, 2010. Type of Review: Extension of a
Regulation Project Number: LR–209– Gerald Shields, currently approved collection.
76 (T.D. 7941). IRS Reports Clearance Officer. Affected Public: Individuals and
Abstract: Internal Revenue Code [FR Doc. 2010–13241 Filed 6–1–10; 8:45 am] business or other for-profit
section 6324A permits the executor of a BILLING CODE 4830–01–P organizations.
decedent’s estate to elect a lien on Estimated Number of Respondents:
section 6166 property in favor of the 200.
United States in lieu of a bond or DEPARTMENT OF THE TREASURY
Estimated Time per Respondent: 15
personal liability if an election under minutes.
section 6166 was made and the executor Internal Revenue Service
Estimated Total Annual Burden
files an agreement under section [PS–74–89] Hours: 50.
6324A(c). This regulation clarifies the
Proposed Collection; Comment The following paragraph applies to all
procedures for complying with the
Request for Regulation Project of the collections of information covered
statutory requirements. Notice 2007–90
by this notice:
provides additional guidance. AGENCY: Internal Revenue Service (IRS),
Current Actions: There is no change to An agency may not conduct or
Treasury. sponsor, and a person is not required to
this existing regulation.
ACTION: Notice and request for respond to, a collection of information
Type of Review: Extension of a
comments. unless the collection of information
currently approved collection.
Affected Public: Individuals or displays a valid OMB control number.
households, and Business or other for- Books or records relating to a collection
Treasury, as part of its continuing effort
profit organizations. of information must be retained as long
to reduce paperwork and respondent
Estimated Number of Respondents: as their contents may become material
burden, invites the general public and
34,600. in the administration of any internal
other Federal agencies to take this
Estimated Time per Respondent: 15 revenue law. Generally, tax returns and
opportunity to comment on proposed
minutes. tax return information are confidential,
and/or continuing information
Estimated Total Annual Burden as required by 26 U.S.C. 6103.
collections, as required by the
Hours: 8,650. Paperwork Reduction Act of 1995, Request for Comments: Comments
The following paragraph applies to all Public Law 104–13 (44 U.S.C. submitted in response to this notice will
of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is be summarized and/or included in the
by this notice: soliciting comments concerning an request for OMB approval. All
An agency may not conduct or existing final regulation, PS–74–89 (TD comments will become a matter of
sponsor, and a person is not required to 8282), Election of Reduced Research public record.
respond to, a collection of information Credit (§ 1.280C–4). Comments are invited on: (a) Whether
unless the collection of information DATES: Written comments should be
the collection of information is
displays a valid OMB control number. received on or before August 2, 2010 to necessary for the proper performance of
Books or records relating to a collection be assured of consideration. the functions of the agency, including
of information must be retained as long whether the information shall have
ADDRESSES: Direct all written comments
as their contents may become material practical utility; (b) the accuracy of the
to Gerald Shields, Internal Revenue agency’s estimate of the burden of the
Service, Room 6129, 1111 Constitution collection of information; (c) ways to
revenue law. Generally, tax returns and
Avenue, NW., Washington, DC 20224. enhance the quality, utility, and clarity
tax return information are confidential,
as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: of the information to be collected; (d)
Request for Comments: Comments Requests for additional information or ways to minimize the burden of the
submitted in response to this notice will copies of the regulations should be collection of information on
be summarized and/or included in the directed to Elaine Christophe, (202) respondents, including through the use
request for OMB approval. All 622–3179, or at Internal Revenue of automated collection techniques or
comments will become a matter of Service, Room 6129, 1111 Constitution other forms of information technology;
public record. Avenue, NW., Washington, DC 20224, and (e) estimates of capital or start-up
Comments are invited on: (a) Whether or through the Internet, at costs and costs of operation,
the collection of information is Elaine.H.Christophe@irs.gov. maintenance, and purchase of services
necessary for the proper performance of SUPPLEMENTARY INFORMATION: to provide information.
Approved: May 25, 2010. Type of Review: Extension of a to reduce paperwork and respondent
Gerald Shields, currently approved collection. burden, invites the general public and
IRS Reports Clearance Officer. Affected Public: Business or other for- other Federal agencies to take this
[FR Doc. 2010–13239 Filed 6–1–10; 8:45 am] profit organizations. opportunity to comment on proposed
Estimated Number of Respondents: and/or continuing information
100. collections, as required by the
Estimated Annual Average Time per Paperwork Reduction Act of 1995,
DEPARTMENT OF THE TREASURY Respondent: 30 minutes. Public Law 104–13 (44 U.S.C.
Estimated Total Annual Hours: 50. 3506(c)(2)(A)).
Internal Revenue Service The following paragraph applies to all Currently, the IRS is soliciting
of the collections of information covered comments concerning Form 990–N,
Proposed Collection; Comment by this notice: Electronic Notice (e-Postcard) for Tax-
Request for Revenue Procedure 2004– An agency may not conduct or
Exempt Organizations not Required To
19 sponsor, and a person is not required to
file Form 990 or 990–EZ.
respond to, a collection of information
AGENCY: Internal Revenue Service (IRS), unless the collection of information DATES: Written comments should be
Treasury. displays a valid OMB control number. received on or before August 2, 2010 to
ACTION: Notice and request for Books or records relating to a collection be assured of consideration.
comments. of information must be retained as long ADDRESSES: Direct all written comments
as their contents may become material to Gerald Shields, Internal Revenue
SUMMARY: The Department of the Service, Room 6129, 1111 Constitution
Treasury, as part of its continuing effort revenue law. Generally, tax returns and Avenue, NW., Washington, DC 20224.
to reduce paperwork and respondent tax return information are confidential, FOR FURTHER INFORMATION CONTACT:
burden, invites the general public and as required by 26 U.S.C. 6103. Requests for additional information or
other Federal agencies to take this Request for Comments: Comments copies of the forms and instructions
opportunity to comment on proposed submitted in response to this notice will should be directed to Elaine Christophe,
and/or continuing information be summarized and/or included in the (202) 622–3179, or at Internal Revenue
collections, as required by the request for OMB approval. All Service, Room 6129, 1111 Constitution
Paperwork Reduction Act of 1995, comments will become a matter of Avenue, NW., Washington, DC 20224,
Public Law 104–13 (44 U.S.C. public record. or through the Internet, at
3506(c)(2)(A)). Comments are invited on: (a) Whether Elaine.H.Christophe@irs.gov.
Currently, the IRS is soliciting the collection of information is
comments concerning Revenue necessary for the proper performance of SUPPLEMENTARY INFORMATION:
Procedure 2004–19, Probable or the functions of the agency, including Title: Electronic Notice (e-Postcard)
Prospective Reserves Safe Harbor. whether the information shall have for Tax-Exempt Organizations not
DATES: Written comments should be practical utility; (b) the accuracy of the Required To file Form 990 or 990–EZ.
received on or before August 2, 2010 to agency’s estimate of the burden of the OMB Number: 1545–2085.
be assured of consideration. Form Number: 990–N.
collection of information; (c) ways to
Abstract: Section 1223 of the Pension
ADDRESSES: Direct all written comments enhance the quality, utility, and clarity
Protection Act of 2006 (PPA ’06),
to Gerald Shields, Internal Revenue of the information to be collected; (d)
enacted on August 17, 2006, amended
Service, Room 6129, 1111 Constitution ways to minimize the burden of the
Internal Revenue Code (Code) section
Avenue, NW., Washington, DC 20224. collection of information on
6033 by adding Code section 6033(i),
FOR FURTHER INFORMATION CONTACT: respondents, including through the use
which requires certain tax-exempt
Requests for additional information or of automated collection techniques or
other forms of information technology; organizations to file an annual
copies of the revenue procedure should electronic notice (Form 990–N) for tax
be directed to Elaine Christophe, (202) and (e) estimates of capital or start-up
costs and costs of operation, years beginning after December 31,
622–3179, or at Internal Revenue 2006. These organizations are not
Service, Room 6129, 1111 Constitution maintenance, and purchase of services
to provide information. required to file Form 990 (or Form 990–
Avenue, NW., Washington, DC 20224, EZ) because their gross receipts are
or through the Internet, at Approved: May 25, 2010. normally $25,000 or less.
Elaine.H.Christophe@irs.gov. Gerald Shields, Current Actions: There are no changes
SUPPLEMENTARY INFORMATION: IRS Reports Clearance Officer. being made to the Form at this time.
Title: Probable or Prospective [FR Doc. 2010–13237 Filed 6–1–10; 8:45 am] Type of Review: Extension of a
Reserves Safe Harbor. BILLING CODE 4830–01–P currently approved collection.
OMB Number: 1545–1861. Affected Public: Not-for-profit
Revenue Procedure Number: Revenue institutions.
Procedure 2004–19. DEPARTMENT OF THE TREASURY Estimated Number of Respondents:
Abstract: Revenue Procedure 2004–19 520,000.
requires a taxpayer to file an election Internal Revenue Service Estimated Time per Respondent: 15
statement with the Service if the min.
taxpayer wants to use the safe harbor to Proposed Collection; Comment Estimated Total Annual Burden
estimate the taxpayers’ oil and gas Request for Form 990–N Hours: 130,000.
properties’ probable or prospective AGENCY: Internal Revenue Service (IRS), The following paragraph applies to all
reserves for purposes of computing cost Treasury. of the collections of information covered
depletion under § 611 of the Internal ACTION: Notice and request for by this notice:
Revenue Code. comments. An agency may not conduct or
Current Actions: There are no changes sponsor, and a person is not required to
being made to the revenue procedure at SUMMARY: The Department of the respond to a collection of information
this time. Treasury, as part of its continuing effort unless the collection of information
displays a valid OMB control number. Institutions (CDFI) Fund awards grants disbursements, and report on behalf of
Books or records relating to a collection to Eligible Organizations to provide a the collaborative.
of information must be retained as long range of Financial Education and 8. Community Development Financial
as their contents may become material Counseling Services to Prospective Institution (or CDFI) means an entity
in the administration of any internal Homebuyers. The goals of grants that are certified as a CDFI by the CDFI Fund
revenue law. Generally, tax returns and awarded through the FEC Pilot Program pursuant to the CDFI Program
tax return information are confidential, are to identify successful methods of regulations set forth at 12 CFR 1805.201.
as required by 26 U.S.C. 6103. Financial Education and Counseling 9. Control means: (i) Ownership,
Request for Comments: Comments Services that result in Positive control, or power to vote 25 percent or
submitted in response to this notice will Behavioral Change for financial more of the outstanding shares of any
be summarized and/or included in the empowerment, and to establish program class of voting securities of any
request for OMB approval. All models for organizations to implement company, directly or indirectly or acting
comments will become a matter of measurably effective Financial through one or more other persons; (ii)
public record. Education and Counseling Services to control in any manner over the election
Comments are invited on: (a) Whether Prospective Homebuyers. of a majority of the directors, trustees,
the collection of information is or general partners (or individuals
necessary for the proper performance of I. Funding Opportunity Description exercising similar functions) of any
the functions of the agency, including A. Through the FEC Pilot Program, company; or (iii) the power to exercise,
whether the information shall have authorized pursuant to section 1132 of directly or indirectly, a controlling
practical utility; (b) the accuracy of the the Housing and Economic Recovery influence over the management, credit
agency’s estimate of the burden of the Act of 2008 (Pub. L. 110–289), the CDFI or investment decisions, or policies of
collection of information; (c) ways to Fund provides financial assistance any company.
enhance the quality, utility, and clarity awards to Eligible Organizations to 10. Credit Union means any credit
of the information to be collected; (d) provide a range of Financial Education union that is: (i) Regulated by, and/or
ways to minimize the burden of the and Counseling Services to Prospective the member accounts of which are
collection of information on Homebuyers. insured by, a State agency or
respondents, including through the use instrumentality; or (ii) a cooperative
B. Definitions: For the purposes of
of automated collection techniques or association organized in accordance
this NOFA, the following terms shall
other forms of information technology; with provisions of the Federal Credit
have the following definitions:
and (e) estimates of capital or start-up Union Act, chapter 14 of title 12 of the
1. Act means section 1132(c) of the
costs and costs of operation, United States Code (12 U.S.C. 1751).
Housing and Economic Recovery Act of 11. Eligible Organization means an
maintenance, and purchase of services 2008 (Pub. L. 110–289).
to provide information. entity that: (i) Is certified by the
2. Affiliate means any company or Department of Housing and Urban
Approved: May 25, 2010. entity that Controls, is Controlled by, or Development (HUD) as Housing
Gerald Shields, is under common Control with another Counseling Agencies, in accordance
IRS Reports Clearance Officer. company. with section 106(e)(1) of the Housing
[FR Doc. 2010–13235 Filed 6–1–10; 8:45 am] 3. Applicant means any Eligible and Urban Development Act of 1968,
Organization. (12 U.S.C. 1701x(e)), or is certified by
4. Application means the CDFI Fund’s the Office of Financial Education (OFE)
funding application form, including any of the Department of the Treasury, in
DEPARTMENT OF THE TREASURY written or verbal information in accordance with section 1132(c)(2) of
connection therewith and any the Act; (ii) meets the criteria in Section
Community Development Financial attachments, appendices and/or written III.A.1–2 of this NOFA; and (iii) meets
Institutions Fund or verbal supplements thereto, the minimum threshold requirements,
submitted by the Awardee to the CDFI as specified in Section III.A.4. of this
Notice of Funds Availability for FY Fund in response to this NOFA.
2010 NOFA, necessary to demonstrate that it
5. Assistance Agreement means the has the experience and ability to
Funding Opportunity Title: Notice of formal agreement between the CDFI provide Financial Education and
Funds Availability (NOFA) inviting Fund and an Awardee that includes the Counseling Services to Prospective
applications for the FY 2010 funding terms and conditions of the FEC Pilot Homebuyers that result in documented
round of the Financial Education and Program award. Positive Behavioral Changes.
Counseling (FEC) Pilot Program. 6. Awardee means an Applicant 12. Financial Education and
Announcement Type: Announcement selected by the CDFI Fund to receive an Counseling Pilot Program (or FEC Pilot
of funding opportunity. FEC Pilot Program grant. Program) means the program created
Catalog of Federal Domestic 7. Collaborative Effort means a joint pursuant to the Act, as implemented
Assistance (CFDA) Number: 21.010. effort by two or more Eligible through this NOFA.
DATES: Applications for financial Organizations to carry out Financial 13. Financial Education and
assistance through the FY 2010 funding Education and Counseling Services to Counseling Services means activities
round of FEC Pilot Program must be Prospective Homebuyers, as described that increase the financial knowledge
received by 11:59 p.m. Eastern Time in the Application and as evidenced by and decision-making capabilities of
(ET), July 8, 2010. Applications received a written agreement among the entities Prospective Homebuyers. Such
after the applicable deadline will be for the Performance Period. The education and counseling services shall
rejected. Collaborative Effort must designate the prepare or assist Prospective
Executive Summary: This NOFA is entity that will serve as the primary FEC Homebuyers to develop monthly
issued in connection with the FY 2010 Pilot Program point of contact for the budgets, build personal savings, finance
funding round of the FEC Pilot Program. CDFI Fund, and that will serve as or plan for major purchases, reduce
Through the FEC Pilot Program, the signatory to the Assistance Agreement, personal debt, improve financial
Community Development Financial receive and allocate award stability, and set and reach financial
goals. Such services may include: 21. Performance Period means the to Eligible Organizations headquartered
Helping Prospective Homebuyers to period beginning with the effective date outside the State of Hawaii. The CDFI
improve their credit scores by of the Assistance Agreement and Fund expects that each FY 2010 FEC
understanding the relationship between includes an Awardee’s three full Pilot Program grant made to an Eligible
credit histories and credit scores; and consecutive fiscal years after such Organization that is headquartered
educating Prospective Homebuyers effective date, during which the outside the State of Hawaii will be made
about the options available to build Awardee must meet performance goals in the approximate amount of $200,000
savings for short- and long-term goals. set forth in the Assistance Agreement, or to $400,000; however, the CDFI Fund
14. HUD Housing Counseling Agency such other period as may be established reserves the right to provide a grant to
means an entity that is currently by the CDFI Fund. an Eligible Organization that is
certified and maintains its certified 22. Positive Behavioral Changes headquartered outside of the State of
status in accordance with section means changes in activities, especially Hawaii in an amount other than
106(e)(1) of the Housing and Urban measurable changes, reflecting specified above or in an amount other
Development Act of 1968 (12 U.S.C. increased financial knowledge (what than that which the Applicant requests.
1701x(e)) through the Performance consumers know) and management The FY 2010 FEC Pilot Program grant
Period. skills (what consumers do). Such made to a Hawaii Applicant will be
15. Intermediary Organization means changes include, but are not limited to, made in the approximate amount of
an Eligible Organization whose strategy increasing savings, engaging in short- or $3.15 million. The CDFI Fund reserves
for delivering Financial Education and long-term financial planning, tracking the right to fund, in whole or in part,
Counseling services to Prospective expenses and income, and better any, all, or none of the Applications
Homebuyers is to provide support, managing credit. submitted in response to this NOFA.
through financial or technical 23. Prospective Homebuyer means an B. Detailed Application content
assistance, to other organizations that individual of at least 18 years of age requirements are found in the FEC Pilot
will, in turn, provide Financial who, at the time of initial receipt of Program Application and related
Education and Counseling services Financial Education and Counseling guidance materials:
directly to Prospective Homebuyers. Services funded in whole or in part C. The primary purposes of the FEC
16. Local government means a city, through an award under the FEC Pilot Pilot Program are: (i) To identify
town, township, county, parish, village, Program: (i) Is Low-Income, Moderate- successful methods of Financial
or other general purpose political Income, and/or Low-Wealth; and (ii) Education and Counseling Services that
subdivision of a State or Federal does not currently own, hold title to, or result in Positive Behavioral Changes for
Territory, or a general purpose political pay a mortgage on a residence. financial empowerment of Prospective
subdivision thereof that is established 24. State government means any State Homebuyers; and (ii) to establish
pursuant to legislation and designated of the United States, the District of program models for organizations to
by the chief executive to act on behalf Columbia, the Commonwealth of Puerto implement measurably effective
of the jurisdiction. Rico or any Federal territory, or any Financial Education and Counseling
17. Low-income means a family or agency or instrumentality thereof that is Services to Prospective Homebuyers.
individual income that does not exceed established pursuant to legislation and D. To achieve such purposes, the
50 percent of the median income of the designated by the chief executive officer CDFI Fund will award FEC Pilot
area in which they reside, as determined to act on behalf of the jurisdiction. Program grants to Eligible Organizations
by the Secretary of Housing and Urban 25. Subsidiary means any company that provide Financial Education and
Development, with adjustments for which is owned or Controlled directly Counseling Services to Prospective
smaller and larger families pursuant to or indirectly by another company. Homebuyers with the goals of: (i)
section 102(a)(20) of the Housing and 26. Tribal government means a unit of Increasing the financial knowledge and
Community Development Act, the local government that is established to decision-making capabilities of
pertinent provisions of which are act on behalf of Native American, Prospective Homebuyers; (ii) assisting
codified at 42 U.S.C. 5302(a)(20). Alaskan Native, and Native Hawaiian Prospective Homebuyers to develop
18. Low-wealth means a Net Worth people, or is a political subdivision that monthly budgets, build personal
below the national median as defined by is designated by the chief executive of savings, finance or plan for major
the Federal Reserve Board’s most the jurisdiction to act on behalf of the purchases, reduce personal debt,
recently published Survey of Consumer rights associated with residents of a improve financial stability, and set and
Finances. For more information federally recognized Indian Reservation reach financial goals; (iii) helping
concerning the Survey of Consumer or of Hawaiian Home Lands as defined Prospective Homebuyers to improve
Finances, please refer to http:// by the Hawaiian Homes Commission their credit scores by understanding the
www.federalreserve.gov/pubs/oss/oss2/ Act (42 Stat. 108) or members of relationship between credit histories
scfindex.html. corporations designated under the and credit scores; and (iv) educating
19. Moderate-income means a family Alaska Native Claims Settlement Act (43 Prospective Homebuyers about the
or individual income that exceeds 50 U.S.C. 1601). options available to build savings for
percent, but does not exceed 80 percent, short- and long-term goals. For Hawaii
of the median income of the area in II. Award Information Applicants, the Prospective
which they reside, as determined by the A. Funding Availability: Through this Homebuyers must reside in the State of
Secretary of Housing and Urban NOFA, the CDFI Fund expects that it Hawaii.
Development, with adjustments for will award: (i) One grant in the E. Awardees will be selected based
smaller and larger families pursuant to aggregate amount of $3.15 million in FY upon factors which include, but are not
section 102(a)(20) of the Housing and 2010 appropriated funds to an Eligible limited to, their experience and ability
Community Development Act, the Organization whose headquarters is to provide Financial Education and
pertinent provisions of which are located in the State of Hawaii (Hawaii Counseling Services to Prospective
codified at 42 U.S.C. 5302(a)(20). Applicants) and (ii) not more than five Homebuyers which result in
20. Net Worth means assets less grants in the aggregate amount of $1 documented Positive Behavioral
liabilities. million in FY 2010 appropriated funds Changes (see Section V. B.–C., below, for
Criteria and Review and Selection Pilot Program grant funds to acquire proceeds from the CDFI Fund. The
Process). new equipment or to enhance existing Assistance Agreement contains the
F. Uses of Funds: In general, eligible equipment that will directly further the terms and conditions of the award. For
uses of FEC Pilot Program awards purposes and activities of its Financial further information, see Section VI.A. of
include all allowable expenses as Education and Counseling Services. this NOFA.
defined by Office of Management and 6. Other Program Expenses: An
Budget (OMB) Circular A–122, ‘‘Cost Awardee may use FEC Pilot Program III. Eligibility Information
Principles For Non-Profit grant funds to cover other direct A. Eligible Applicants: An Applicant
Organizations,’’ and OMB Circular A– expenses allowable under OMB Circular must be an Eligible Organization in
87, ‘‘Cost Principles for State, Local, and A–122 and OMB Circular A–87, order to be eligible to receive an FEC
Indian Tribal Governments,’’ related to including direct payments made to the Pilot Program award. The following sets
the administration, operation, and recipients of the Awardee’s Financial forth additional detail and dates that
implementation of a Financial Education and Counseling Services (e.g., relate to the submission of applications
Education and Counseling Services contributions to a matched savings under this NOFA:
program. For example, eligible uses may account; compensation for participating 1. Eligibility of Hawaii Applicants:
include, but are not limited to, the in follow-on surveys; reimbursement for Any Eligible Organization
following: expenses associated with attending headquartered in the State of Hawaii is
1. Personnel (Salary): An Awardee training sessions; etc.). For all other eligible to apply for an award of $3.15
may use FEC Pilot Program grant funds costs outlined in OMB Circular A–122 million in the FY 2010 Funding Round.
to cover the salary paid currently or and OMB Circular A–87, the Awardee Any such organization that applied for
accrued for services rendered by must demonstrate to the satisfaction of an award in the FY 2009 Funding
permanent or temporary staff in carrying the CDFI Fund that the activity will be Round must submit a new Application
out a distinct project or for a set period directly linked to its Financial under this NOFA in order to be
during the Performance Period. The Education and Counseling Services. considered for the $3.15 million award
CDFI Fund will only cover salary for Awardees are expected to use a portion available in the FY 2010 Funding
duties that are related to the purpose of of FEC Pilot Program grant funds to Round. For purposes of this NOFA, a
the award. Compensation paid for finance costs related to evaluating the Hawaii Applicant must demonstrate
employees engaged in activities funded impact of the Financial Education and that its headquarters is located in the
with a FEC Pilot Program grant must be Counseling Services on the financial State of Hawaii.
consistent with that paid for similar knowledge, and change of skills and 2. Eligibility of Applicants Located
work for other Awardee employees. behavior, of Prospective Homebuyers. outside of the State of Hawaii: With
2. Personnel (Fringe Benefits): An Such uses may include development respect to the $1 million in funding that
Awardee may use FEC Pilot Program and implementation of assessment tools, is available to non-Hawaii Applicants in
grant funds to cover the fringe benefits including both short-term and the FY 2010 Funding Round, only
paid currently or accrued for services longitudinal assessments, and other Applicants headquartered outside the
rendered by permanent or temporary research on effectiveness of particular State of Hawaii that applied for funding
staff in carrying out a distinct project or program activities. in the FY 2009 Funding Round will be
for a set period during the Performance 7. Indirect Costs: An Awardee may considered for these awards. The CDFI
Period. Fringe benefits are for personnel use no more than fifteen percent (15%) Fund is not soliciting, nor will it review,
listed in Personnel (Salary) and only for of FEC Pilot Program grant funds to any new applications from Applicants
the percentage of time devoted to the cover indirect expenses allowable under located outside the state of Hawaii.
FEC Pilot Program-related activities OMB Circular A–122 and OMB Circular Rather, the CDFI Fund anticipates
during the Performance Period. Fringe A–87. making between three to five awards, in
benefits on overtime hours are limited G. FEC Pilot Program grant funds amounts ranging from $200,000 to
to FICA, Workers’ Compensation, and must be used to support the Awardee’s $400,000, to Eligible Organizations that
Unemployment Compensation. Fringe activities: Grant funds cannot be used to submitted applications under the FY
benefits provided to employees engaged support the activities of, or otherwise be 2009 Funding Round and were ranked
in activities funded with a FEC Pilot ‘‘passed through’’ to third-party entities, and reviewed by the selection
Program grant must be consistent with including Affiliates or Subsidiaries, committee, but were not selected to
that paid for similar work for other without the prior written permission of receive awards under the FY 2009
Awardee employees. the CDFI Fund. Notwithstanding this Funding Round.
3. Professional Service Costs general prohibition against passing In addition, as described further
(Consulting and Contracts): An Awardee through funds to other entities, below, in order to be deemed eligible for
may use FEC Pilot Program grant funds Intermediary Organizations shall be an FEC Pilot Program award, an Eligible
to acquire external expertise that will permitted to apply for FEC Pilot Organization must demonstrate that it
directly further the purposes and Program grant funds in furtherance of meets certain minimum threshold
activities of its Financial Education and their strategy to support other providers requirements with respect to its
Counseling Services. of Financial Education and Counseling experience and ability to provide
4. Materials and Supplies: An Services to Prospective Homebuyers, Financial Education and Counseling
Awardee may use FEC Pilot Program provided that such funds are not used Services to Prospective Homebuyers
grant funds to purchase supplies and/or to provide financial or technical that result in documented Positive
to produce materials that will directly assistance to any other organization (or Behavioral Changes.
further the purposes and activities of its its Affiliates) that receives a FEC Pilot 3. Eligibility Specifications:
Financial Education and Counseling Program grant through the FY 2009 (a) HUD Housing Counseling
Services. Generally, supplies include funding round. Agencies: To be eligible for an award
any materials that are expended or H. Assistance Agreement: Each through this NOFA, a HUD Housing
consumed over time. Awardee under this NOFA must sign an Counseling Agency must be certified as
5. Equipment and Other Capital Assistance Agreement in order to such in accordance with section
Expenditures: An Awardee may use FEC receive a disbursement of award 106(e)(1) of the Housing and Urban
Development Act of 1968 (912 U.S.C. with respect to such services; and (iv) at the CDFI Fund will consider whether
1701x(e)), as of the Application the time of Application, it has budget Applicants constitute a common
deadline under this NOFA and must resources of at least $50,000 dedicated enterprise. For the purposes of this
maintain its status as a HUD Housing to the provision of Financial Education NOFA, a common enterprise may exist:
Counseling Agency through the and Counseling Services. Entities that (i) Where the activities described in
Performance Period. cannot satisfy each of these four Applications submitted by separate
(b) State, Local, and Tribal requirements do not meet the minimum entities are, or will be, operated and/or
governments: To be eligible for an award requisite experience and ability to managed such that, in fact or effect, they
through this NOFA, State, Local, and administer an FEC Pilot Program award, may be viewed as a single entity; (ii)
Tribal governments must provide and will not be eligible for FEC Pilot where the Applications submitted by
applicable documentation in the form Program awards. separate entities contain significant
specified in the Application. 5. Intermediary Organizations: An narrative, textual or other similarities; or
(c) CDFIs: To be eligible for an award Intermediary Organization must be one (iii) where the strategies and/or
through this NOFA, a CDFI must be of the following: (a) A HUD Housing activities described in Applications
certified as a CDFI by the CDFI Fund as Counseling Agency; (b) a State, Local or submitted by separate entities are so
of the Application deadline under this Tribal government; (c) a CDFI; or (d) a closely related, in fact or effect, they
NOFA and must maintain its CDFI Credit Union. Additionally, an may be viewed as substantially identical
certification throughout the Intermediary Organization must certify Applications. In such cases, the CDFI
Performance Period. that it meets the minimum threshold Fund reserves the right: To reject all
(d) Credit Unions: To be eligible for an criteria described above in Section Applications received from all such
award through this NOFA, a Credit III.A.4. An Intermediary Organization entities; to select a single Application as
Union must have received its Credit may satisfy the requirements of Section the only one that will be considered for
Union charter by or before the III.A.4. based on the Intermediary an award; and/or, in the event that an
Application deadline under this NOFA Organization’s direct activities or the Application is selected to receive an
and must maintain its status as a Credit activities of Financial Education and award, to deem certain activities
Union throughout the Performance Counseling Services providers ineligible.
Period. supported by the Intermediary B. Limitations on Awards: Awardees
(e) Hawaii Applicants: Approximately Organization. are required to account for the use of all
$3.15 million in appropriated funds 6. Eligibility Reviews: Eligibility FEC Pilot Program award dollars. FEC
under this NOFA are available for an reviews will be completed at the time of Pilot Program award funds cannot be
award to an Eligible Organization whose Application submission, based on the used to cover expenses of any same
headquarters is located in the State of Application. activities for which the Awardee has
Hawaii. For purposes of this NOFA, a 7. Applications Submitted as Part of received, or will receive, awards from
Hawaii Applicant must demonstrate a Collaborative Effort: In such other sources of federal financial
that its headquarters is located in the circumstances, the Collaborative Effort assistance; notwithstanding this
State of Hawaii. must identify in the Application the limitation, FEC Pilot Program award
4. Experience and Ability: In order to lead organization that will serve as the funds can be used to increase the
be deemed an Eligible Organization by primary administrator of the FEC Pilot population served by the Awardee, and/
the Office of Financial Education (OFE), Program award. This entity is or to increase the scope of the
an organization must demonstrate that, hereinafter deemed the ‘‘Lead Awardee’s Financial Education and
at the time of Application submission, Applicant’’ for purposes of the Counseling Services. Intermediary
it has the requisite experience and Application. The Lead Applicant must Organizations that receive FEC Pilot
ability to provide Financial Education be able to assert that it (individually and Program awards may not use those
and Counseling Services to Prospective separately from the combined dollars to provide assistance to other
Homebuyers that result in documented accomplishments of the Collaborative FEC Pilot Program awardees (or their
Positive Behavioral Changes. As Effort members) can satisfy each of the Affiliates) that receive awards through
specified further in the Application, an four threshold criteria identified in either the FY 2009 or FY 2010 Funding
entity must demonstrate that: (i) It has Section III.A.4., above. Other members Rounds.
been providing Financial Education and of the Collaborative Effort are not C. Matching Funds: There are no
Counseling Services for a period of at required to meet the minimum matching fund requirements for the FEC
least three years immediately prior to threshold criteria. Pilot Program.
the Application deadline; (ii) it has at 8. Entities that Submit Applications
least two full-time equivalent positions Together with Affiliates or Subsidiaries; IV. Application and Submission
dedicated to the development and/or Applications from Common Enterprises: Information
delivery of Financial Education and If an Applicant and its Affiliates or A. Applications Submitted via
Counseling Services (this may include Subsidiaries wish to submit Grants.gov: Hawaii Applicants must
the time of more than two staff persons, Applications, they must do so submit Applications under this NOFA
board members, or outside contractors collectively, in one Application; an electronically, through via Grants.gov.
totaling 75.0 hours or more per week); Applicant and its Affiliates or In order to submit an application via
(iii) it has provided Financial Education Subsidiaries may not submit separate Grants.gov, Applicants must complete a
and Counseling Services (either directly Applications. If Affiliated or Subsidiary multi-step registration process.
or, in the case of an Intermediary entities submit multiple Applications, Applicants are encouraged to allow at
Organization, indirectly) to at least 100 the CDFI Fund reserves the right either least two to three weeks to complete the
Potential Homebuyers in calendar year to reject all such Applications received registration process. No paper
2009 or to an average of at least 150 or to select a single Application as the submittals or attachments will be
Potential Homebuyers per year over the only Application considered for a grant. accepted. Applications sent by mail,
three calendar years prior to the For purposes of this NOFA, in facsimile or other form will generally
Application deadline, and tracked addition to assessing whether not be accepted, except in
Positive Behavioral Change outcomes Applicants are Affiliates or Subsidiaries, circumstances approved in advance by
the CDFI Fund, in its sole discretion. In addition, Applicants must separately specifically requested in this NOFA or
The CDFI Fund will post to its Web site submit, via their myCDFIFund account, the Application.
at http://www.cdfifund.gov instructions the application signature page, signed B. Criteria: Applicants will be
for accessing and submitting by the Applicant’s Authorized evaluated across several key areas:
Applications as soon as they become Representative by no later than 11:59 1. Implementation Plan: The
available. Applicants may use the p.m. ET on July 8, 2010. Applicant must provide a detailed,
following link for information on getting Authorized Representative, and all successful strategy for developing and
started on Grants.gov: http://grants.gov/ other Hawaii Applicants and potential delivering innovative Financial
assets/GrantsgovCoBrandBrochure Hawaii Applicants with technical or Education and Counseling Services to
8X11.pdf. programmatic questions must contact Prospective Homebuyers. The Applicant
B. MyCDFIFund Accounts: All Hawaii the CDFI Fund by 5 p.m. ET on July 6, is required to identify and describe,
Applicants must register User and 2010 in order to receive a response to among other things: (i) Its particular
Organization accounts in myCDFIFund, their inquiries. The CDFI Fund will not target market; (ii) the types of Financial
the CDFI Fund’s Internet-based respond to Hawaii Applicants and Education and Counseling Services that
interface. A Hawaii Applicant must be potential Hawaii Applicants that submit the Applicant will provide to its target
registered as both a User and an questions after this date until after the market, including any proposed
Organization in myCDFIFund as of the Application deadline. innovations that will enhance the
Application deadline in order to be E. Paperwork Reduction Act: Under likelihood of success within the
considered to have submitted a the Paperwork Reduction Act (44 U.S.C. Performance Period; (iii) the need and
complete Application. As myCDFIFund chapter 35), an agency may not conduct demand for such services among the
is the CDFI Fund’s primary means of or sponsor a collection of information, target market; and (iv) the delivery
communication with Applicants and strategy for providing such services to
and an individual is not required to
Awardees, organizations must make the target market, including how it
respond to a collection of information,
sure that they update the contact collaborates with other entities, and any
unless it displays a valid OMB control
information in their myCDFIFund proposed innovations that will enhance
number. Pursuant to the Paperwork
accounts before the Application the likelihood of success within the
Reduction Act, the Application has been
deadline. For more information on Performance Period. Hawaii Applicants
assigned the following control number:
myCDFIFund, please see the will be scored more favorably to the
1559–0034.
‘‘Frequently Asked Questions’’ link extent that they identify a plan to serve
F. Late Delivery: The CDFI Fund will the entire State of Hawaii, including
posted at https://www.cdfifund.gov/
neither accept a late Application nor rural communities and populations that
myCDFI/Help/Help.asp.
C. Application Content Requirements: any portion of an Application that is may be harder to serve due to
Detailed Application content late; an Application that is late, or for geographic isolation, language and
requirements, including instructions which any portion is late, will be cultural barriers, or other reasons.
relating to the submission of the rejected. An application submitted via 2. Proposed Impacts: The Applicant
application via Grants.gov, are found in Grants.gov and all required submissions must be able to demonstrate that the
the Application materials. Please note via Applicant’s myCDFIFund account effective delivery of its proposed
that, each Applicant must provide, as must be received by the applicable time Financial and Education Counseling
part of its Application, a Dun and and date set forth above. The CDFI Fund Services will result in documented
Bradstreet Data Universal Numbering will not grant exceptions or waivers for Positive Behavioral Changes among
System (DUNS) number pursuant to late delivery of documents including, Prospective Homebuyers. To this end,
OMB guidance (68 FR 38402). In but not limited to, late delivery that is the Applicant must identify and
addition, each Application must include caused by third parties. Any describe, among other things: (i) Its
a valid and current Employer Application that is deemed ineligible benchmarks for measuring Positive
Identification Number (EIN) with a will not be returned to the Applicant. Behavioral Changes; (ii) its strategy for
letter or other documentation from the G. Intergovernmental Review: Not tracking and documenting Positive
Internal Revenue Service (IRS) applicable. Behavioral Changes over time; and (iii)
confirming the EIN. Hawaii Applicants H. Funding Restrictions: For the extent to which it believes its model,
should allow sufficient time for the IRS allowable uses of FEC Pilot Program if successful, can be readily replicated
and/or Dun and Bradstreet to respond to award proceeds, please see Section II.F., by other providers of Financial
inquiries and/or requests for above. Education and Counseling Services.
identification numbers. An Application 3. Organizational Capacity: The
V. Application Review Information Applicant must demonstrate the ability
that does not include an EIN is
incomplete and cannot be transmitted to A. Format: Applications must be and capacity to undertake its proposed
the CDFI Fund. The preceding sentences single-spaced and use a 12-point font delivery of the Financial Education and
do not limit the CDFI Fund’s ability to with 1-inch margins. Each section in the Counseling Services to Prospective
contact any Applicant for the purpose of Application that is reviewed has Homebuyers, to measure and report on
obtaining clarifying or confirming recommended page limitations. Hawaii outcomes, and to manage its FEC Pilot
application information such as a DUNS Applicants are encouraged to read each Program award dollars. To this end, the
number or EIN information. Once an section carefully and to remain within Applicant will be required to identify
Application is submitted, the Applicant the page limitations for each section. and describe, among other things: (i) Its
will not be allowed to change any There is also an absolute page limitation key personnel and staffing resources
element of the Application. of 25 pages for the entire Application. (current and proposed); (ii) its track
D. Application Deadlines: The FEC The CDFI Fund will not consider record of providing Financial Education
Pilot Program Application must be responses beyond the 25 page and Counseling Services and tracking
submitted to Grants.gov in accordance limitation. Also, the CDFI Fund will program outcomes; (iii) its current
with the instructions provided in the read only information requested in the financial condition, including results of
Application guidance materials, by no Application and will not read recent audits; and (iv) its experience
later than 11:59 p.m. ET on July 8, 2010. attachments that have not been administering other federal government
grant awards, if applicable. Hawaii 3. Application Review; Selection: such information into consideration
Applicants will be asked specifically to Awards will be made based on before making an award under the FEC
identify and describe their track record Applicants’ experience and ability to Pilot Program.
of providing Financial Education and provide Financial Education and 4. Award Notification: Each Applicant
Counseling Services and tracking Counseling Services to Prospective will be informed of the CDFI Fund’s
program outcomes in Hawaii, including Homebuyers that result in documented award decision either through a
their track record of serving various Positive Behavioral Changes, in notification from the CDFI Fund if
parts of the State of Hawaii, including accordance with the criteria set forth selected for an award or written
rural and urban areas, and populations above in Section V.B. Awards pursuant declination if not selected for an award.
that may be harder to serve due to to the $1 million in funding available The CDFI Fund will notify Awardees by
geographic isolation, language and for non-Hawaii Applicants will be made e-mail using the addresses maintained
cultural barriers, or other reasons. to Applicants that submitted in the Awardee’s myCDFIFund account.
4. Budget/Sources and Use of Funds: applications under the FY 2009 Funding 5. Information and Updates: The
The Applicant must demonstrate that it Round and were ranked and reviewed CDFI Fund reserves the right to reject an
has a strategy to effectively and by the selection committee. Awards Application if information (including
efficiently make use of the FEC Pilot pursuant to the $3.15 million in funding administrative errors) comes to the
Program award dollars. To this end, the available to Hawaii Applicants will be attention of the CDFI Fund that either
Applicant will be required to complete made as set forth in Section V.C.3(a)–(c) adversely affects an Applicant’s
a table outlining its proposed sources below. eligibility for an award, or adversely
and uses of funds, and to provide a (a) Application Review: affects the CDFI Fund’s evaluation or
narrative explanation of how its award To the extent possible, based scoring of an Application, or indicates
dollars will be used to: (i) Further the primarily on the number of fraud or mismanagement on the part of
development and delivery of its Applications received, Applications an Applicant. If the CDFI Fund
Financial Education and Counseling submitted by Hawaii Applicants will be determines that any portion of the
Services; (ii) track customer reviewed in the manner specified Application is incorrect in any material
performance; (iii) evaluate program below. Applications will be sorted into respect, the CDFI Fund reserves the
effectiveness; and/or (iv) facilitate peer groupings based on factors such as right, in its sole discretion, to reject the
program replication. the delivery strategy used to provide Application. The CDFI Fund reserves
C. Review and Selection Process: Financial Education and Counseling the right to change its eligibility and
1. Eligibility and Completeness Services and the target market evaluation criteria and procedures, if
Review: The CDFI Fund will review (geographic or otherwise) that is the CDFI Fund deems it appropriate; if
each Application for completeness. The identified. To the extent possible, based said changes materially affect the CDFI
OFE will review each Application to primarily on the number of Fund’s award decisions, the CDFI Fund
determine whether the Applicant meets Applications received, Applications will provide information regarding the
the eligibility requirements set forth in will be reviewed by multiple reviewers. changes through the CDFI Fund’s Web
this NOFA. An incomplete Application Reviewers will be assigned a set number site. There is no right to appeal the CDFI
does not meet eligibility requirements of Applications within each peer Fund’s award decisions. The CDFI
and will be rejected. Any Application grouping. With respect to each Fund’s award decisions are final.
that does not meet eligibility Application reviewed, the reviewer will
requirements will not be returned to the VI. Award Administration Information
give equal weight to all elements of the
Applicant. Application proposal (i.e., each plan A. Assistance Agreement: Each
2. Substantive Review: If an will be reviewed holistically—no one Applicant that is selected to receive an
Application is determined to be element will be scored higher or lower award under this NOFA must enter into
complete and the Applicant is than any other element). Once the an Assistance Agreement with the CDFI
determined to be an Eligible reviewer has completed all of his/her Fund in order to receive disbursement
Organization, the CDFI Fund will review assignments, he/she will provide of award proceeds. The Assistance
conduct the substantive review of the a ranking of each Application relative to Agreement will set forth certain
Application in accordance with the the other Applications that were required terms and conditions of the
criteria and procedures described in this reviewed. award, which will include but not be
NOFA, the Application, and any (b) Application Selection: Once all limited to: (i) The amount of the award;
Application guidance. As part of the Applications have been reviewed, those (ii) the type of award; (iii) the approved
review process, the CDFI Fund may Applications that were ranked the uses of the award; (iv) the approved
contact the Applicant by telephone, e- highest by the reviewers will be target market to which the funded
mail, mail, or through an on-site visit for reviewed by a selection committee. Each activity must be directed; (v)
the sole purpose of obtaining clarifying member of the selection committee will performance goals and measures; and
or confirming Application information. review and rate each of these (vi) reporting requirements for all
The CDFI Fund reserves the right to Applications, and based upon their Awardees. Assistance Agreements
collect such additional information from ratings, will select a single organization under this NOFA generally will have
Applicants as it deems appropriate to receive an award of up to $3.15 three-year performance periods.
including, but not limited to, copies of million. B. The CDFI Fund reserves the right,
financial education curricula, (c) Evaluating Prior Award in its sole discretion, to terminate the
organizational information, and audited Performance: In the case of an Assistance Agreement and rescind an
financial statements. After submitting Applicant that has received awards from award if the Awardee fails to return the
its Application, the Applicant will not any Federal programs, the CDFI Fund Assistance Agreement, signed by the
be permitted to revise or modify its reserves the right to contact officials authorized representative of the
Application in any way. If contacted for from the appropriate federal agency or Awardee, and/or provide the CDFI Fund
clarifying or confirming information, the agencies to determine whether the with any other requested
Applicant must respond within the time Awardee is in compliance with current documentation, within the deadlines set
parameters set by the CDFI Fund. or prior award agreements, and to take by the CDFI Fund. Each Awardee must
provide the CDFI Fund with a certificate complete. The CDFI Fund reserves the and describing how the funds were
of good standing (or equivalent right to contact such additional entities used. Each Awardee that receives an
documentation) from its State (or or signatories to the Assistance award must provide the CDFI Fund with
jurisdiction) of incorporation. Agreement and require that additional the required complete and accurate
C. Reporting: information and documentation be Automated Clearinghouse (ACH) form
1. Reporting requirements: The CDFI provided. The CDFI Fund will use such for its bank account prior to award
Fund will collect information, on at information to monitor each Awardee’s closing and disbursement.
least an annual basis, from each compliance with the requirements set
Awardee which may include, but shall forth in the Assistance Agreement and VII. Agency Contacts
not be limited to: (i) Use of FEC Pilot to assess the impact of the FEC Pilot
Program award dollars; (ii) aggregated Program. The CDFI Fund reserves the A. The CDFI Fund will respond to
characteristics of individuals that right, in its sole discretion, to modify questions and provide support
received Financial Education and these reporting requirements if it concerning this NOFA and the
Counseling Services funded by FEC determines it to be appropriate and Application between the hours of 9 a.m.
Pilot Program award dollars; and (iii) necessary; however, such reporting and 5 p.m. ET, starting the date of the
the extent to which the Awardee requirements will be modified only after publication of this NOFA through two
satisfied its performance goals and notice to Awardees. days prior to the Application deadline.
measures, to include measures of the 2. Accounting: The CDFI Fund will The CDFI Fund will not respond to
effectiveness of the Awardee’s strategy require each Awardee that receives an questions or provide support concerning
and ability to create Positive Behavioral award through this NOFA to account for the Applications that are received after
Change among Prospective Homebuyers. and track the use of the grant award. 5 p.m. ET on said dates, until after the
Each Awardee is responsible for the This means that for every dollar of an Application deadline. Applications and
timely and complete submission of such award received from the CDFI Fund, the other information regarding the CDFI
reports, even if all or a portion of the Awardee will be required to inform the Fund and its programs may be obtained
documents actually is completed by CDFI Fund of its uses. This will require from the CDFI Fund’s Web site at http://
another entity or signatory to the Awardees to separately account for the
www.cdfifund.gov. The CDFI Fund will
Assistance Agreement. If such other proceeds and use of the award, subject
entities or signatories are required to post responses on its Web site to
to the applicable OMB Circulars. The
provide reports or other documentation CDFI Fund will provide guidance to questions of general applicability
that the CDFI Fund may require, the Awardees outlining the format and regarding the FEC Pilot Program.
Awardee is responsible for ensuring that content of the information to be B. The CDFI Fund’s contact
the information is submitted timely and provided on an annual basis, outlining information is as follows:
TABLE 4—CONTACT INFORMATION

[Fax number for all offices: 202–622–7754]
Telephone num-
Type of question E-mail addresses
ber (not toll free)
FEC Pilot Program ............................................................................................................................. 202–622–6355 cdfihelp@cdfi.treas.gov.

Certification, Compliance, Monitoring and Evaluation ....................................................................... 202–622–6330 cme@cdfi.treas.gov.
Information Technology Support ........................................................................................................ 202–622–2455 IThelp@cdfi.treas.gov.
C. Communication with the CDFI VIII. Information Sessions and DEPARTMENT OF VETERANS
Fund: The CDFI Fund will use the Outreach AFFAIRS
myCDFIFund Internet interface to
communicate with Applicants and The CDFI Fund may conduct [OMB Control No. 2900–New (VA Form 10–
Awardees, using the contact information Webinars or host information sessions 0487)]
maintained in their respective for organizations interested in applying
to, or learning about, the CDFI Fund’s Proposed Information Collection (Six-
myCDFIFund accounts. Therefore, the Month Post-Exit Focus Interview of
Applicant and any Subsidiaries, programs. For further information,
please visit the CDFI Fund’s Web site at Former VHA Employees) Activity:
signatories, and Affiliates must maintain Comment Request
accurate contact information (including http://www.cdfifund.gov.
contact person and authorized Authority: Pub. L. 110–289, Pub. L. 111– AGENCY: Veterans Health
representative, e-mail addresses, fax 8. Administration, Department of Veterans
numbers, phone numbers, and office Affairs.
addresses) in its myCDFIFund ACTION: Notice.
Scott Berman,
account(s). For more information about
Acting Chief Operating Officer, Community SUMMARY: The Veterans Health
myCDFIFund (which includes Development Financial Institutions Fund. Administration (VHA) is announcing an
information about the CDFI Fund’s opportunity for public comment on the
[FR Doc. 2010–13182 Filed 6–1–10; 8:45 am]
Community Investment Impact System), proposed collection of certain

please see the Help documents posted at information by the agency. Under the
http://www.cdfifund.gov/ciis/ Paperwork Reduction Act (PRA) of
accessingciis.pdf. 1995, Federal agencies are required to
publish notice in the Federal Register
concerning each proposed collection of
information, including each new
collection, and allow 60 days for public Frequency of Response: One time. Management and Budget for each
comment in response to the notice. This Estimated Number of Respondents: collection of information they conduct
notice solicits comments on data needed 1,500. or sponsor. This request for comment is
to improve workforce recruitment and Dated: May 27, 2010. being made pursuant to Section
retention. By direction of the Secretary: 3506(c)(2)(A) of the PRA. With respect
DATES: Written comments and to the following collection of
Denise McLamb,
recommendations on the proposed information, VBA invites comments on:
Program Analyst, Enterprise Records Service.
collection of information should be (1) Whether the proposed collection of
[FR Doc. 2010–13259 Filed 6–1–10; 8:45 am] information is necessary for the proper
received on or before August 2, 2010. BILLING CODE 8320–01–P performance of VBA’s functions,
ADDRESSES: Submit written comments
including whether the information will
on the collection of information through
have practical utility; (2) the accuracy of
the Federal Docket Management System DEPARTMENT OF VETERANS VBA’s estimate of the burden of the
(FDMS) at http://www.Regulations.gov; AFFAIRS proposed collection of information; (3)
or to Mary Stout, Veterans Health
[OMB Control No. 2900–0144] ways to enhance the quality, utility, and
Administration (193E1), Department of
clarity of the information to be
Veterans Affairs, 810 Vermont Avenue, Proposed Information Collection (HUD/ collected; and (4) ways to minimize the
NW., Washington, DC 20420 or e-mail: VA Addendum to Uniform Residential burden of the collection of information
mary.stout@va.gov. Please refer to ‘‘OMB Loan Application) Activity: Comment on respondents, including through the
Control No. 2900–New (VA Form 10– Request use of automated collection techniques
0487)’’ in any correspondence. During
AGENCY: Veterans Benefits
or the use of other forms of information
the comment period, comments may be
Administration, Department of Veterans technology.
viewed online through FDMS.
Title: HUD/VA Addendum to Uniform
FOR FURTHER INFORMATION CONTACT: Affairs.
Residential Loan Application, VA Form
Mary Stout (202) 461–5867 or FAX (202) ACTION: Notice. 26–1802a.
273–9381. OMB Control Number: 2900–0144.
SUMMARY: The Veterans Benefits
SUPPLEMENTARY INFORMATION: Under the Type of Review: Extension of a
PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Administration (VBA), Department of
currently approved collection.
3501–3521), Federal agencies must Veterans Affairs (VA), is announcing an Abstract: VA Form 26–1802a serves as
obtain approval from OMB for each opportunity for public comment on the a joint loan application for both VA and
collection of information they conduct proposed collection of certain the Department of Housing and Urban
or sponsor. This request for comment is information by the agency. Under the Development (HUD). Lenders and
being made pursuant to Section Paperwork Reduction Act (PRA) of veterans complete the form to apply for
3506(c)(2)(A) of the PRA. 1995, Federal agencies are required to home loans.
With respect to the following publish notice in the Federal Register Affected Public: Individuals or
collection of information, VHA invites concerning each proposed collection of Households.
comments on: (1) Whether the proposed information, including each proposed Estimated Annual Burden: 20,000
collection of information is necessary extension of a currently approved hours.
for the proper performance of VHA’s collection, and allow 60 days for public Estimated Average Burden per
functions, including whether the comment in response to the notice. This Respondent: 6 minutes.
information will have practical utility; notice solicits comments on information Frequency of Response: One time.
(2) the accuracy of VHA’s estimate of needed to apply for a home loan Estimated Number of Respondents:
the burden of the proposed collection of guaranty. 200,000.
information; (3) ways to enhance the DATES: Written comments and Dated: May 27, 2010.
quality, utility, and clarity of the recommendations on the proposed By direction of the Secretary.
information to be collected; and (4) collection of information should be Denise McLamb,
ways to minimize the burden of the received on or before August 2, 2010. Program Analyst, Enterprise Records Service.
collection of information on ADDRESSES: Submit written comments [FR Doc. 2010–13258 Filed 6–1–10; 8:45 am]
respondents, including through the use on the collection of information through BILLING CODE 8320–01–P
of automated collection techniques or the Federal Docket Management System
the use of other forms of information (FDMS) at http://www.Regulations.gov
technology. or to Nancy J. Kessinger, Veterans DEPARTMENT OF VETERANS
Title: Six-Month Post-Exit Focus Benefits Administration (20M35), AFFAIRS
Interview of Former VHA Employees, Department of Veterans Affairs, 810
VA Form 10–0487. Vermont Avenue, NW., Washington, DC Computer Matching Program Between
OMB Control Number: 2900–New (VA 20420 or e-mail the Department of Veterans Affairs
Form 10–0487). nancy.kessinger@va.gov. Please refer to (VA) and the Department of Defense
Type of Review: New collection. ‘‘OMB Control No. 2900–0144’’ in any (DoD)
Abstract: VHA will conduct a post-
correspondence. During the comment
exit interview with former employees AGENCY: Department of Veterans Affairs.
period, comments may be viewed online
who separated from the Agency. The ACTION:Notice of new computer
through FDMS.
data collected will be used to develop matching program.
talent management strategies to enhance FOR FURTHER INFORMATION CONTACT:

workforce recruitment and retention. Nancy J. Kessinger at (202) 461–9769 or SUMMARY: Notice is hereby given that
Affected Public: Individuals or FAX (202) 275–5947. the Department of Veterans Affairs (VA)
Households. SUPPLEMENTARY INFORMATION: Under the intends to conduct a new recurring
Estimated Annual Burden: 375. PRA of 1995 (Pub. L. 104–13; 44 U.S.C. computer matching program. This will
Estimated Average Burden per 3501–3521), Federal agencies must match personnel records of the
Respondent: 15 minutes. obtain approval from the Office of Department of Defense with VA records
of benefit recipients under the Post-9/11 of Management and Budget (OMB) (54 Vocational Rehabilitation and
GI Bill. FR 25818), as amended by OMB Employment Records—VA, published
The goal of these matches is to Circular A–130, 65 FR 77677 (2000). A in the Federal Register at 74 FR 29275
identify the eligibility status of copy of the notice has been provided to (June 19, 2009), and last amended at 75
Veterans, Servicemembers, and both Houses of Congress and OMB. The FR (April 27, 2010).
reservists, and eligible dependents who matching program is subject to their e. Inclusive dates of the matching
have applied for or who are receiving review. program: The match will begin on July
education benefit payments under the a. Names of participating agencies: 2, 2010 or 40 days after the OMB review
Post-9/11 GI Bill. The purpose of the Department of Defense and Department period, whichever is later, and continue
match is to enable VA to verify that of Veterans Affairs. in effect for 18 months.
individuals meet the conditions of b. Purpose of the match: The purpose
military service and eligibility criteria f. Address for receipt of public
of the match is to enable VA to inquiries or comments: Interested
for payment of benefits determined by determine whether an applicant is
VA under the Post-9/11 GI Bill. individuals may submit written
eligible for payment of benefits under comments to the Director, Regulations
DATES: This match will commence on or the Post-9/11 GI Bill and to verify Management (02REG), Department of
about July 2, 2010. At the expiration of continued compliance with the Veterans Affairs, 810 Vermont Avenue,
18 months after the commencing date requirements of the program. NW., Room 1068, Washington, DC
the Departments may renew the c. Authority: The authority to conduct 20420; fax to (202) 273–9026; or through
agreement for another 12 months. this match is found in 38 U.S.C. http://www.Regulations.gov. All
FOR FURTHER INFORMATION CONTACT: Eric 3684A(a)(1). comments received will be available for
Patterson (225B), Strategy and d. Categories of records and public inspection in the Office of
Legislative Development Team Leader, individuals covered: The records Regulation Policy and Management,
Education Service, Veterans Benefits covered include eligibility records Room 1063B, between the hours of 8
Administration, Department of Veterans extracted from DOD personnel files and a.m. and 4:30 p.m., Monday through
Affairs, 810 Vermont Avenue NW., benefit records that VA establishes for Friday (except holidays). Please call
Washington, DC 20420, (202) 461–9830. all individuals who have applied for (202) 461–4902 for an appointment.
SUPPLEMENTARY INFORMATION: Further and/or are receiving, or have received
Approved: May 20, 2010.
information regarding the matching education benefit payments under the
program is provided below. This Post-9/11 GI Bill. These benefit records John R. Gingrich,
information is required by paragraph 6c are contained in a VA system of records Chief of Staff, Department of Veterans Affairs.
of the ‘‘Guidelines on the Conduct of identified as 58VA21/22/28 entitled: [FR Doc. 2010–13147 Filed 6–1–10; 8:45 am]
Matching Programs’’ issued by the Office Compensation, Pension, Education and BILLING CODE 8320–01–P
Wednesday,
June 2, 2010
Part II
Department of
Health and Human
Services
Centers for Medicare & Medicaid Services
42 CFR Parts 412 and 413

Medicare Program; Prospective Payment
Systems; 2010 and 2011 Rates; Wage
Indices; Proposed Rule and Notice
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
DEPARTMENT OF HEALTH AND CMS–1498–P2, P.O. Box 8011, Term Care Hospital Prospective
HUMAN SERVICES Baltimore, MD 21244–1850. Payment.
Please allow sufficient time for mailed Siddhartha Mazumdar, (410) 786–
Centers for Medicare & Medicaid comments to be received before the 6673, Rural Community Hospital
Services close of the comment period. Demonstration Program Issues.
3. By express or overnight mail. You SUPPLEMENTARY INFORMATION:
42 CFR Parts 412 and 413 may send written comments to the Inspection of Public Comments: All
following address ONLY: Centers for comments received before the close of
[CMS–1498–P2] Medicare & Medicaid Services, the comment period are available for
Department of Health and Human viewing by the public, including any
RIN 0938–AP80 Services, Attention: CMS–1498–P2, personally identifiable or confidential
Mail Stop C4–26–05, 7500 Security business information that is included in
Medicare Program; Supplemental
Boulevard, Baltimore, MD 21244–1850. a comment. We post all comments
Proposed Changes to the Hospital 4. By hand or courier. If you prefer,
Inpatient Prospective Payment received before the close of the
you may deliver (by hand or courier) comment period on the following Web
Systems for Acute Care Hospitals and your written comments before the close
the Long-Term Care Hospital site as soon as possible after they have
of the comment period to either of the been received: http://
Prospective Payment System and following addresses:
Supplemental Proposed Fiscal Year www.regulations.gov. Follow the search
a. For delivery in Washington, DC— instructions on that Web site to view
2011 Rates Centers for Medicare & Medicaid public comments.
AGENCY: Centers for Medicare & Services, Department of Health and Comments received timely will also
Medicaid Services (CMS), HHS. Human Services, Room 445–G, Hubert be available for public inspection as
ACTION: Proposed rule.
H. Humphrey Building, 200 they are received, generally beginning
Independence Avenue, SW., approximately 3 weeks after publication
SUMMARY: This proposed rule is a Washington, DC 20201. of a document, at the headquarters of
supplement to the fiscal year (FY) 2011 (Because access to the interior of the the Centers for Medicare & Medicaid
hospital inpatient prospective payment Hubert H. Humphrey Building is not Services, 7500 Security Boulevard,
systems (IPPS) and long-term care readily available to persons without Baltimore, Maryland 21244, Monday
prospective payment system (LTCH Federal government identification, through Friday of each week from 8:30
PPS) proposed rule published in the commenters are encouraged to leave a.m. to 4 p.m. To schedule an
May 4, 2010 Federal Register. This their comments in the CMS drop slots appointment to view public comments,
supplemental proposed rule would located in the main lobby of the phone 1–800–743–3951.
implement certain statutory provisions building. A stamp-in clock is available
Electronic Access
relating to Medicare payments to for persons wishing to retain a proof of
hospitals for inpatient services that are filing by stamping in and retaining an This Federal Register document is
contained in the Patient Protection and extra copy of the comments being filed.) also available from the Federal Register
Affordable Care Act and the Health Care b. For delivery in Baltimore, MD— online database through GPO Access, a
and Education Reconciliation Act of Centers for Medicare & Medicaid service of the U.S. Government Printing
2010 (collectively known as the Services, Department of Health and Office. Free public access is available on
Affordable Care Act). It would also Human Services, 7500 Security a Wide Area Information Server (WAIS)
specify statutorily required changes to Boulevard, Baltimore, MD 21244–1850. through the Internet and via
the amounts and factors used to If you intend to deliver your asynchronous dial-in. Internet users can
determine the rates for Medicare acute comments to the Baltimore address, access the database by using the World
care hospital inpatient services for please call telephone number (410) 786– Wide Web, (the Superintendent of
operating costs and capital-related costs, 7195 in advance to schedule your Documents’ home Web page address is
and for long-term care hospital costs. arrival with one of our staff members. http://www.gpoaccess.gov/), by using
Comments mailed to the addresses local WAIS client software, or by telnet
DATES: To be assured consideration, indicated as appropriate for hand or to swais.access.gpo.gov, then login as
comments must be received at one of courier delivery may be delayed and guest (no password required). Dial-in
the addresses provided below, no later received after the comment period. users should use communications
than 5 p.m. on July 2, 2010. Submission of comments on software and modem to call (202) 512–
ADDRESSES: In commenting, please refer paperwork requirements. You may 1661; type swais, then login as guest (no
to file code CMS–1498–P2. Because of submit comments on this document’s password required).
staff and resource limitations, we cannot paperwork requirements by following
accept comments by facsimile (FAX) the instructions at the end of the I. Background
transmission. ‘‘Collection of Information On March 23, 2010, the Patient
You may submit comments in one of Requirements’’ section in this document. Protection and Affordable Care Act
four ways (please choose only one of the For information on viewing public (Pub. L. 111–148) was enacted.
ways listed): comments, see the beginning of the Following the enactment of Public Law
1. Electronically. You may submit SUPPLEMENTARY INFORMATION section. 111–148, the Health Care and Education
electronic comments on this regulation FOR FURTHER INFORMATION CONTACT: Tzvi Reconciliation Act of 2010 Public Law
to http://www.regulations.gov. Follow Hefter, (410) 786–4487, and Ing-Jye 111–152 (enacted on March 30, 2010),
the instructions for submitting a Cheng, (410) 786–4548, Operating amended certain provisions of Public
comment. Prospective Payment, Wage Index, Law 111–148. These public laws are
2. By regular mail. You may mail Hospital Geographic Reclassifications, collectively known as the Affordable
written comments to the following Capital Prospective Payment, Critical Care Act. A number of the provisions of
address ONLY: Centers for Medicare & Access Hospital (CAH). Public Law 111–148, affect the IPPS and
Medicaid Services, Department of Michele Hudson, (410) 786–4487, and the LTCH PPS and the providers and
Health and Human Services, Attention: Judith Richter, (410) 786–2590, Long- suppliers addressed in this proposed
rule. However, due to the timing of the II. Provisions of the Proposed and rural and imputed floor budget
passage of the legislation, were unable Regulations neutrality provisions for FY 2011.
to address those provisions in the FY In this section of this supplementary a. Reclassification Average Hourly Wage
2011 IPPS and LTCH PPS proposed rule proposed rule, we address the Comparison Criteria
that appeared in the May 4, 2010 provisions of Public Law 111–148, that
Federal Register (75 FR 23852). In the FY 2009 IPPS final rule, we
affect our proposed policies and adopted the policy to adjust the
Therefore, the proposed policies and payment rates for FY 2011 under the
payment rates in that proposed rule did reclassification average hourly wage
IPPS and the LTCH PPS. standard, comparing a reclassifying
not reflect the new legislation. We noted
in that proposed rule that we would A. Changes to the Acute Care Hospital hospital’s (or county hospital group’s)
issue separate Federal Register Wage Index average hourly wage relative to the
documents addressing the provisions of average hourly wage of the area to
1. Plan for Reforming the Wage Index which it seeks reclassification. (We refer
Public Law 111–148 that affect our
proposed policies and payment rates for Section 3137(b) of Public Law 111– readers to the FY 2009 IPPS final rule
FY 2010 and FY 2011 under the IPPS 148 requires the Secretary of Health and for a full discussion of the basis for the
and the LTCH PPS. This supplementary Human Services to submit to Congress, proposals the public comments received
proposed rule addresses the following not later than December 31, 2011, a and the FY 2009 final policies.) We
provisions of the new legislation that report that includes a plan to reform the provided for a phase-in of the
affect the following FY 2011 proposed Medicare wage index applied under the adjustment over 2 years. For
policies: Medicare IPPS. In developing the plan, applications for reclassification for the
the Secretary of Health and Human first transitional year, FY 2010, the
• Hospital wage index improvement Services must take into consideration average hourly wage standards were set
related to geographic reclassification the goals for reforming the wage index at 86 percent for urban hospitals and
criteria for FY 2011 (section 3137 of that were set forth by the MedPAC in its group reclassifications, and 84 percent
Pub. L. 111–148). June 2007 report entitled, ‘‘Report to for rural hospitals. For applications for
• National budget neutrality in the Congress: Promoting Greater Efficiency reclassification for FY 2011 (for which
calculation of the rural floor for hospital in Medicare’’, including establishing a the application deadline was September
wage index (section 3141 of Pub. L. new system that — 1, 2009) and for subsequent fiscal years,
111–148). • Uses Bureau of Labor of Statistics the average hourly wage standards were
• Protections for frontier States (BLS) data, or other data or 88 percent for urban and group
(section 10324 of Pub. L. 111–148). methodologies, to calculate relative reclassifications and 86 percent for rural
wages for each geographic area; hospitals. Sections 412.230, 412.232,
• Revisions of certain market basket • Minimizes wage index adjustments and 412.234 of the regulations were
updates (sections 3401 and 10319 of between and within MSAs and revised accordingly. These policies were
Pub. L. 111–148 and section 1105 of statewide rural areas; adopted in the FY 2009 IPPS final rule
Pub. L. 111–152). • Includes methods to minimize the and were reflected in the wage index in
• Temporary improvements to the volatility of wage index adjustments the Addendum to the FY 2011 IPPS
low-volume hospital adjustment while maintaining budget neutrality in proposed rule, which appeared in the
(sections 3125 and 10314 of Pub. L. applying such adjustments; Federal Register on May 4, 2010.
111–148). • Takes into account the effect that However, provisions of section
• Extension of Medicare-dependent implementation of the system would 3137(c) of Public Law 111–148 recently
hospitals (MDHs) (section 3124 of Pub. have on health care providers and on revised the average hourly wage
L. 111–148). each region of the country; standards. Specifically, section 3137(c)
• Addresses issues related to restores the average hourly wage
• Additional payments in FYs 2011 occupational mix, such as staffing standards that were in place for FY 2008
and 2012 for qualifying hospitals in the practices and ratios, and any evidence (that is, 84 percent for urban hospitals,
lowest quartile of per capital Medicare on the effect on quality of care or patient 85 percent for group reclassifications,
spending (section 1109 of Pub. L. 111– safety as a result of the implementation and 82 percent for rural hospitals) for
152). of the system; and applications for reclassification for FY
• Extension of the rural community • Provides for a transition. 2011 and for each subsequent fiscal year
hospital demonstration (section 3123 of In addition, section 3137(b)(3) of Public until the first fiscal year beginning on or
Pub. L. 111–148). Law 111–148 requires the Secretary of after the date that is one year after the
• Technical correction related to Health and Human Services to consult Secretary of Health and Human Services
critical access hospital (CAH) services with relevant affected parties in submits a report to Congress on a plan
(section 3128 of Pub. L. 111–148). developing the plan. Although the for reforming the wage index under
provisions of section 3137(b) of Public 3137(b) of Public Law 111–148. Section
• Extension of certain payment rules 3137(c) of Public Law 111–148 also
Law 111–148 will not have an actual
for long-term care hospital services and requires the revised average hourly
impact on the FY 2011 wage, we are
of moratorium on the establishment of wage standards to be applied in a
notifying the public of the provisions so
certain hospitals and facilities (sections budget neutral manner. We note that
that they may provide comments and
3106 and 10312 of Pub. L. 111–148). section 3137(c) of Public Law 111–148
suggestions on how they may
We also noted that we plan to issue participate in developing the plan. does not provide for the revised average
further instructions implementing the hourly wage standards to be applied
provisions of Public Law 111–148 that 2. Provisions on Wage Comparability retroactively, nor does it change the
affect the policies and payment rates for and Rural/Imputed Floor Budget statutory deadline for applications for
FY 2010 under the IPPS and for RY Neutrality reclassification for FY 2011. Under
2010 under the LTCH PPS in a separate Sections 3137(c) and 3141 of Public section 1886(d)(10) of the Act, the
document published elsewhere in this Law 111–148 affect reclassification Medicare Geographic Classification
Federal Register. average hourly wage comparison criteria Review Board (MGCRB) considers
applications by hospitals for geographic regulations to codify the revised average expiration date already included in our
reclassification for purposes of payment hourly wage standards. regulations.
under the IPPS. Hospitals must apply to Therefore, the wage index in the
b. Budget Neutrality Adjustment for the Addendum to this supplemental FY
the MGCRB to reclassify 13 months
Rural and Imputed Floors 2011 IPPS proposed rule reflects a
prior to the start of the fiscal year for
which reclassification is sought In the FY 2009 IPPS final rule (73 FR uniform, national budget neutrality
(generally by September 1). For 48574 through 48575), we adopted State adjustment for the rural and imputed
reclassifications for the FY 2011 wage level budget neutrality (rather than the floors, which is a factor of 0.995425.
index, the deadline for applications was national budget neutrality adjustment)
for the rural and imputed floors, 3. Frontier States Floor (§ 412.64)
September 1, 2009 (74 FR 43838).
In implementing section 3137(c) of effective beginning with the FY 2009 In accordance with section 10324(a)
Public Law 111–148, we requested the wage index and incorporated this policy of Affordable Care Act, beginning in FY
assistance of the MGCRB in in our regulation at § 412.64(e)(4). 2011, the statute provides for
determining, for applications received Specifically, the regulations specified establishing an adjustment to create a
that CMS makes an adjustment to the wage index floor of 1.00 for all hospitals
by September 1, 2009, whether
wage index to ensure that aggregate located in States determined to be
additional hospitals would qualify for
payments after implementation of the Frontier States. The statute defines any
reclassification for FY 2011 based on the
rural floor under section 4410 of the State as a Frontier State if at least 50
revised average hourly wage standards
Balanced Budget Act of 1997 (Pub. L. percent of the State’s counties are
of 84 percent for urban hospitals, 85
105–33) and the imputed floor under determined to be Frontier Counties. The
percent for group reclassifications, and
§ 412.64(h)(4) are made in a manner that statute defines as counties that have a
82 percent for rural hospitals. We
ensures that aggregate payments to population density less than 6 persons
determined that 18 additional hospitals
hospitals are not affected and that, per square mile. The law requires that
would qualify for reclassification for FY
beginning October 1, 2008, we would this provision shall not apply to
2011. Also, 5 hospitals, for which the hospitals in Alaska or Hawaii receiving
transition from a nationwide adjustment
MGCRB granted reclassifications to their a non-labor related share adjustment
to a statewide adjustment, with a
secondary requested areas for FY 2011, under section 1886(d)(5)(H) of the Act.
statewide adjustment fully in place by
would qualify for reclassifications To implement this provision, we
October 1, 2010.
instead to their primary requested areas These policies for the rural and propose to identify Frontier Counties by
because they now meet the average imputed floors were adopted in the FY analyzing population data and county
hourly wage criteria to reclassify to 2009 IPPS final rule and were reflected definitions based upon the most recent
those areas. Therefore, in accordance in the wage index in the Addendum to annual Population Estimates published
with § 412.278 of the regulations, in the FY 2011 IPPS/LTCH PPS proposed by the U.S. Census Bureau. We will
which paragraph (c) provides the rule, published in the Federal Register divide each county’s population total by
Administrator discretionary authority to on May 4, 2010. However, these policies each county’s reported land area
review any final decision of the were recently changed by the provisions (according to the decennial census) in
MGCRB, we submitted a letter to the of section 3141 of Public Law 111–148. square miles to establish population
Administrator requesting that she Specifically, section 3141 of Affordable density. We also propose to update this
review and amend the MGCRB’s Care Act rescinds our policy analysis from time to time, such as upon
decision and grant the 23 hospitals their establishing a statewide budget publication of a subsequent decennial
requested reclassifications (or primary neutrality adjustment for the rural and census, and if necessary, add or remove
reclassifications) for FY 2011. imputed floors and, instead, restores it qualifying States from the list of
The wage index in the Addendum to to a uniform, national adjustment, Frontier States based on the updated
this supplemental FY 2011 IPPS beginning with the FY 2011 wage index. analysis.
proposed rule reflects these changes in Additionally, the imputed floor, is set to For a State that qualifies as a Frontier
hospital reclassifications, although the expire on September 30, 2011. We do State, in accordance with section
Administrator had not issued all of her not read section 3141 of Public Law 10324(a) of Public Law 111–148, all PPS
decisions by the date of this proposed 111–148 as altering this expiration date. hospitals located within that State will
rule. In calculating the wage index in Section 3141 of Public Law 111–148 receive either the higher of its post-
this proposed rule, we made requires that we ‘‘administer subsection reclassification wage index rate, or a
assumptions that the Administrator (b) of such section 4410 and paragraph minimum value of 1.00. We propose
would grant the 23 hospitals their (e) of * * * section 412.64 in the same that, for a hospital that is geographically
requested reclassifications (or primary manner as the Secretary administered located in a Frontier State and is
reclassifications) and that the hospitals such subsection (b) and paragraph (e) reclassified under section 1886(d)(10) of
would not request the Administrator to for discharges occurring during fiscal the Act to a CBSA in a non-Frontier
amend her decisions. Generally, these year 2008 (through a uniform, national State, the hospital will receive a wage
reclassifications would result in the adjustment to the area wage index).’’ index that is the higher of the
highest possible wage index for the Thus, section 3141 of Public Law 111– reclassified area wage index or the
hospitals. Any changes to the wage 148 is governing how we apply budget minimum wage index of 1.00. In
index, as a result of the Administrator’s neutrality, under the authorities of accordance with section 10324(a) of
actual decision issued under § 412.64(e) and section 4410(b) of the Public Law 111–148, the Frontier State
§ 412.278(c), or an amendment of the Balanced Budget Act, but it does not adjustment will not be subject to budget
Administrator’s decision issued under alter § 412.64(h) of our regulations neutrality under section 1886(d)(3)(E) of
paragraph (g), will be reflected in the FY (which includes the imputed floor and the Act, and will only be extended to
2011 IPPS final rule. its expiration date). To the extent there hospitals geographically located within
In accordance with the requirements is an imputed floor, section 3141 of a Frontier State. We propose to calculate
in section 3137(c) of Affordable Care Public Law 111–148 governs budget and apply the Frontier State floor
Act, we are modifying § 412.230, neutrality for that floor, but it does not adjustments after rural and imputed
§ 412.232, and § 412.234 of the continue the imputed floor beyond the floor budget neutrality adjustments are
calculated for all labor market areas, so public comment on these proposals For the proposed FY 2011 IPPS wage
as to ensure that no hospital in a regarding our methods for determining index, the Frontier States are the
Frontier State will receive a wage index Frontier States, and for calculation and following: Reflected in the following
lesser than 1.00 due to the rural and application of the adjustment. table:
imputed floor adjustment. We invite
TABLE 1—FRONTIER STATES UNDER SECTION 10324(a)

Percent
Total Frontier
State frontier
counties counties counties
Montana ................................................................................................................................................... 56 45 80
Wyoming .................................................................................................................................................. 23 17 74
North Dakota ............................................................................................................................................ 53 36 68
Nevada ..................................................................................................................................................... 17 11 65
South Dakota ........................................................................................................................................... 66 34 52
Frontier States are identified by a footnote in Table 4D–2 of the Addendum to this supplemental proposed rule. Population Data set: http://
www.census.gov/popest/estimates.html (2009 County Total Population Estimates).
Land Area Dataset http://factfinder.census.gov/ (Decennial: Census Geographic Comparison Tables: ‘‘United States—County by State and for
Puerto Rico’’).
4. Revised FY 2011 IPPS Proposed Rule 5. Procedures for Withdrawing additional hospitals listed as
Wage Index Tables Reclassifications in FY 2011 reclassified in Table 9A in the
Section 1886(d)(10)(D)(v) of the Act Addendum to this supplemental
The revised IPPS proposed wage
states that the Secretary should establish proposed rule. Hospitals have sufficient
index values for FY 2011, reflecting the
procedures under which a subsection time between the display or publication
provisions of sections 3137(c), 3141,
(d) hospital may elect to terminate a date of this supplemental FY 2011 IPPS/
and 10324 of Public Law 111–148, are
reclassification before the end of a 3- LTCH PPS proposed rule in the Federal
included in Tables 2, 4A, 4B, 4C, and
year period, but does not contain any Register and the June 18, 2010 deadline
4D–2 of the Addendum to this
other specifics regarding how such for withdrawals and terminations to
supplemental FY 2011 IPPS/LTCH PPS
termination should occur. Our rules at evaluate and make determinations
proposed rule.
42 CFR 412.273 state that hospitals that regarding their reclassification for the
Table 4D–1, which listed the FY 2011 wage index. As noted in the
have been reclassified by the MGCRB
statewide rural and imputed floor initial FY 2011 IPPS proposed rule, the
are permitted to withdraw their
budget neutrality factors, is eliminated mailing address of the MGCRB is: 2520
applications within 45 days of the
from the Addendum to this Lord Baltimore Drive, Suite L,
publication of CMS’s annual notice of
supplemental FY 2011 IPPS/LTCH PPS Baltimore, MD 21244–2670.
proposed rulemaking. For purposes of
proposed rule and is no longer
this supplementary proposed rule, we B. Inpatient Hospital Market Basket
applicable for the wage index because
interpret our regulation as referring to Update
section 3141 of Public Law 111–148
the initial FY 2011 IPPS/LTCH PPS
instead requires the application of a Below we discuss the adjustments to
proposed rule (which appeared in the
national adjustment. May 4, 2010 Federal Register), and our the FY 2010 and FY 2011 market basket
Table 4J, which lists the out-migration procedure for this supplementary as required by the Affordable Care Act.
adjustment for a qualifying county, is proposed rule is to start the time period In this supplemental proposed rule we
revised due to the above provisions of for requesting a withdrawal or are not proposing to address the
Affordable Care Act. Additionally, Table termination from publication of that provisions of section 3401 of Public Law
9A, the list of hospitals that are initial proposed rule. Were we not to 111–148 providing for a productivity
reclassified or redesignated for FY 2011, use such a time period, requests for adjustment for FY 2012 and subsequent
is revised according to section 3137(c) termination and withdrawal would be fiscal years; rather, this change will be
of Public Law 111–148. Both revised received too late to include in our final addressed in future rulemaking.
tables are included in the Addendum to rule. Thus, all requests for withdrawal
this supplemental FY 2011 IPPS/LTCH 1. FY 2010 Inpatient Hospital Update
of an application for reclassification or
PPS proposed rule. termination of an existing 3-year In accordance with section
Tables 3A and 3B, which list the 3- reclassification that would be effective 1886(b)(3)(B)(i) of the Act, each year we
year average hourly wage for each labor in FY 2011 must be received by the update the national standardized
market area before the redesignation or MGCRB by June 18, 2010. amount for inpatient operating costs by
reclassification of hospitals, Table 4E, We note that wage index values in the a factor called the ‘‘applicable
the list of urban CBSAs and constituent tables in the Addendum to this percentage increase.’’ Prior to enactment
counties, Table 4F, the Puerto Rico wage supplemental FY 2011 IPPS/LTCH PPS of Public Law 111–148 and Public Law
index, and Table 9C, the list of hospitals proposed rule may have changed 111–152, section 1886(b)(3)(B)(i)(XX) of
redesignated under section 1886(d)(8)(E) somewhat from the initial, more the Act set the applicable percentage
of the Act, are unaffected by the above comprehensive FY 2011 IPPS/LTCH increase equal to the rate-of-increase in
provisions of Affordable Care Act. PPS proposed rule (which appeared in the hospital market basket for IPPS
Therefore, these tables are unchanged the May 4, 2010 Federal Register) due hospitals in all areas, subject to the
from the initial FY 2011 IPPS/LTCH to the application of sections 3137(c), hospital submitting quality information
PPS proposed rule and are not included 3141, and 10324 of Affordable Care Act. under rules established by the Secretary
in the Addendum to this supplemental In addition, as a result of section 3137(c) in accordance with section
FY 2011 IPPS/LTCH PPS proposed rule. of Affordable Care Act, there may be 1886(b)(3)(B)(viii) of the Act. For
hospitals that do not provide these data, percentage change equals the market all other IPPS hospitals, the update to
the update is equal to the market basket basket index for IPPS hospitals (which the hospital specific rates for SCHs and
percentage increase less an additional is defined under § 413.40(a)) in all areas MDHs is also subject to the amendments
2.0 percentage points. In accordance for hospitals that submit quality data in to section 1886(b)(3)(B)(i) made by
with these statutory provisions, in the accordance with our rules, and the section 3401(a) of Public Law 111–148.
FY 2010 IPPS/LTCH PPS final rule (74 market basket index for IPPS hospitals Accordingly, for hospitals paid for their
FR 43850), we finalized an applicable in all areas less 2.0 percentage for inpatient operating costs on the basis of
percentage increase equal to the full hospitals that fail to submit quality data a hospital-specific rate, the rates paid to
market basket update of 2.1 percent in accordance with our rules. As noted such hospitals for discharges occurring
based on IHS Global Insight, Inc.’s above, in the FY 2010 IPPS/LTCH PPS during the first half of FY 2010 will be
second quarter 2009 forecast of the FY final rule, we calculated that the full based on an annual update estimated to
2010 market basket increase, provided market basket update equals 2.1 percent be 2.1 percent for hospitals submitting
the hospital submits quality data in based on IHS Global Insight, Inc.’s quality data or 0.1 percent for hospitals
accordance with our rules. For hospitals second quarter 2009 forecast of the FY that fail to submit quality data; and the
that do not submit quality data, in the 2010 market basket increase. In rates paid to such hospitals for the
FY 2010 IPPS/LTCH PPS final rule we addition, we are proposing to revise second half of FY 2010 will be based on
finalized an applicable percentage § 412.64(d) to state that for the second an update that is estimated to be 1.85
increase equal to 0.1 percent (that is, the half of FY 2010 (discharges on or after percent for hospitals submitting quality
FY 2010 estimate of the market basket April 1, 2010 through September 30, data or ¥0.15 percent for hospitals that
rate-of-increase minus 2.0 percentage 2010), in accordance with section fail to submit quality data. Similar to
points). 3401(a), we are proposing to set the that stated above, we are proposing to
Sections 3401(a) and 10319 of Public applicable percentage change equal to update §§ 412.73(c)(15), 412.75(d),
Law 111–148 amend section the market basket index for IPPS 412.77(e), 412.78(e), 412.79(d) to reflect
1886(b)(3)(B)(i) of the Act. Specifically, hospitals in all areas reduced by 0.25 current law.
sections 3401(a) and 10319(a) of Public percentage points for hospitals that
Law 111–148 amend section 2. FY 2011 Inpatient Hospital Update
submit quality data in accordance with
1886(b)(3)(B)(i) of the Act to set the FY our rules. For those hospitals that fail to As with the FY 2010 applicable
2010 applicable percentage increase for submit quality data, in accordance with percentage increase, section 3401(a) of
IPPS hospitals equal to the rate-of- Public Law 111–148 as amended by
our rules, we are proposing to reduce
increase in the hospital market basket section 10319(a) of Public Law 111–148,
the market basket index for IPPS
for IPPS hospitals in all areas minus a amends section 1886(b)(3)(B)(i) of the
hospitals by an additional 2.0
0.25 percentage point, subject to the Act to provide that the FY 2011
percentage points (which is in addition
hospital submitting quality information applicable percentage increase for IPPS
to the 0.25 percentage point reduction
under rules established by the Secretary hospitals equals the rate-of-increase in
required by section 1886(b)(3)(B)(i) of
in accordance with section the hospital market basket for IPPS
the Act as amended by section 3401(a)
1886(b)(3)(B)(viii) of the Act. For hospitals in all areas reduced by 0.25
of Public Law 111–148 as amended by
hospitals that do not provide these data, percentage point, subject to the hospital
section 10319(a) of Public Law 111–148.
the update is equal to the market basket submitting quality information under
Based on IHS Global Insight, Inc.’s rules established by the Secretary in
percentage increase minus 0.25 second quarter 2009 forecast of the FY
percentage point less an additional 2.0 accordance with section
2010 market basket increase, the FY 1886(b)(3)(B)(viii) of the Act. For
percentage points. Section 3401(a)(4) of
2010 applicable percentage change that hospitals that do not provide these data,
Public Law 111–148 further states that
applies to rates for inpatient hospital the update is equal to the market basket
these amendments may result in the
operating costs under the IPPS for percentage increase minus a 0.25
applicable percentage increase being
discharges occurring in the second half percentage point less an additional 2.0
less than zero. Although these
of FY 2010 is 1.85 percent (that is, the percentage points. Section 3401(a)(4) of
amendments modify the applicable
FY 2010 estimate of the market basket Public Law 111–148 further states that
percentage increase applicable to the FY
rate-of-increase of 2.1 percent minus this amendment may result in the
2010 rates under the IPPS, section
0.25 percentage points) for hospitals in applicable percentage increase being
3401(p) of Public Law 111–148 states
that the amendments do not apply to all areas, provided the hospital submits less than zero.
discharges occurring prior to April 1, quality data in accordance with our In Appendix B of the FY 2011 IPPS/
2010. In other words, for discharges rules. For hospitals that do not submit LTCH PPS proposed rule, we
occurring on or after October 1, 2009 quality data, the payment update to the announced that due to the timing of the
and prior to April 1, 2010, the rate for operating standardized amount is ¥0.15 passage of Public Law 111–148, we were
a hospital’s inpatient operating costs percent (that is, the adjusted FY 2010 unable to address those provisions in
under the IPPS will be based on the estimate of the market basket rate-of- the proposed rule. In that proposed rule,
applicable percentage increase set forth increase of 1.85 percent minus 2.0 consistent with current law, based on
in the FY 2010 IPPS/LTCH PPS final percentage points). IHS Global Insight, Inc.’s first quarter
rule. Section 1886(b)(3)(B)(iv) of the Act 2010 forecast, with historical data
We are proposing to revise 42 CFR provides that the applicable percentage through the 2009 fourth quarter, of the
412.64(d) to reflect current law. increase applicable to the hospital- FY 2011 IPPS market basket increase,
Specifically, in accordance with section specific rates for SCHs and MDHs we estimated that the FY 2011 update
1886(b)(3)(B)(i) of the Act as amended equals the applicable percentage to the operating standardized amount
by sections 3401(a) and 10319(a) of increase set forth in section would be 2.4 percent (that is, the
Public Law 111–148, we are proposing 1886(b)(3)(B)(i) of the Act (that is, the current estimate of the market basket
to revise § 412.64(d) to state that for the same update factor as for all other rate-of-increase) for hospitals in all
first half of FY 2010 (that is, discharges hospitals subject to the IPPS). Because areas, provided the hospital submits
on or after October 1, 2009 through the Act sets the update factor for SCHs quality data in accordance with our
March 30, 2010), the applicable and MDHs equal to the update factor for rules. For hospitals that do not submit
quality data, we estimated that the 25 percent of the Puerto Rico-specific standardized amount as applied to the
update to the operating standardized standardized amount. Section national standardized amount, we are
amount would be 0.4 percent (that is, 1886(d)(9)(C)(i) of the Act is the basis proposing to revise § 412.211(c) to set
the current estimate of the market basket for determining the applicable the update factor for the Puerto Rico-
rate-of-increase minus 2.0 percentage percentage increase applied to the specific operating standardized amount
points). Since publication of the FY Puerto Rico-specific standardized equal to the update factor applied to the
2011 IPPS/LTCH PPS proposed rule our amount. Section 1886(d)(9)(C)(i) of the national standardized amount for all
estimate of the market basket for FY Act provides that the Puerto Rico IPPS hospitals. Therefore, we are
2011 has not changed. However, standardized amount shall be adjusted proposing an update factor for the
consistent with the amendments to in accordance with the final Puerto Rico-specific standardized
section 1886(b)(3)(B)(i) of the Act made determination of the Secretary under amount equal to the FY 2011 estimate
by section 3401 of Public Law 111–148, section 1886(d)(4) of the Act. Section of the IPPS operating market basket rate-
for FY 2011 we are required to reduce 1886(e)(4)(1) of the Act in turn directs of-increase of 2.4 percent minus 0.25
the hospital market basket update by the Secretary to recommend an percentage points, or 2.15 percent, for
0.25 percentage points. Therefore, based appropriate change factor for Puerto FY 2011.
on IHS Global Insight, Inc.’s first quarter Rico hospitals taking into account
2010 forecast of the FY 2011 market amounts necessary for the efficient and C. Payment Adjustment for Low-Volume
basket increase, the estimated update to effective delivery of medically Hospitals (§ 412.101)
the FY 2011 operating standardized appropriate and necessary care of high Section 1886(d)(12) of the Act, as
amount is 2.15 percent (that is, the FY quality, as well as the recommendations added by section 406 of Public Law
2011 estimate of the market basket rate- of MedPAC. In order to maintain 108–173, provides for a payment
of-increase of 2.4 percent minus 0.25 consistency between the portion of the adjustment to account for the higher
percentage points) for hospitals in all rates paid to Puerto Rico hospitals costs per discharge for low-volume
areas, provided the hospital submits under the IPPS based on the national hospitals under the IPPS, effective
quality data in accordance with our standardized amount and the portion beginning FY 2005. Sections 3215 and
rules. For hospitals that do not submit based on the Puerto Rico-specific 10314 of Public Law 111–148 amend the
quality data, the estimated update to the standardized rate, beginning in FY 2004 definition of a low-volume hospital
operating standardized amount is 0.15 we have set the update to the Puerto under section 1886(d)(12)(C) of the Act.
percent (that is, the adjusted FY 2011 Rico-specific operating standardized It also revises the methodology for
estimate of the market basket rate-of- amount equal to the update to the calculating the payment adjustment for
increase of 2.15 percent minus 2.0 national operating standardized amount low-volume hospitals.
percentage points). We are proposing to for all IPPS hospitals. This policy is
revise § 412.64(d) to reflect the reflected in our regulations at 42 CFR 1. Background
provisions of section 3401(a) of Public 412.211.
The amendments to section Prior to being amended by the
Law 111–148.
Section 1886(b)(3)(B)(iv) of the Act 1886(b)(3)(B)(i) of the Act by sections Affordable Care Act, section
provides that the FY 2011 applicable 3401(a) and section 10319(a) of Public 1886(d)(12)(C)(i) of the Act defined a
percentage increase in the hospital- Law 111–148, affect only the update low-volume hospital as ‘‘a subsection (d)
specific rates for SCHs and MDHs factor applicable to the national hospital (as defined in paragraph (1)(B))
equals the applicable percentage standardized rate for IPPS hospitals and that the Secretary determines is located
increase set forth in section the hospital-specific rates; they do not more than 25 road miles from another
1886(b)(3)(B)(i) of the Act (that is, the mandate any revisions to the update subsection (d) hospital and that has less
same update factor as for all other factor applicable to the Puerto Rico- than 800 discharges during the fiscal
hospitals subject to the IPPS). Similar to specific standardized amount. Rather, as year.’’ Section 1886(d)(12)(C)(ii) of the
the FY 2010 applicable percentage noted above, sections 1886(d)(9)(C)(i) Act further stipulates that ‘‘the term
increase in the hospital-specific rates, and (e)(4) of the Act direct us to adopt ‘‘discharge’’ means an inpatient acute
because the Act requires us to apply to an appropriate change factor for the FY care discharge of an individual
the hospital-specific rates the update 2010 Puerto Rico-specific standardized regardless of whether the individual is
factor for all other IPPS hospitals, the amount, which we did in the FY 2010 entitled to benefits under Part A.’’
update to the hospital specific rates for IPPS/LTCH PPS final rule after notice Therefore, the term refers to total
SCHs and MDHs is also subject to and consideration of public comments. discharges, not merely Medicare
section 1886(b)(3)(B)(i) as amended by Therefore, we do not believe we have discharges. Finally, under section 406,
the Affordable Care Act. Accordingly, the authority to now propose setting the the provision requires the Secretary to
the update to the hospital-specific rates FY 2010 update factor for the Puerto determine an applicable percentage
applicable to SCHs and MDHs is Rico-specific operating standardized increase for these low-volume hospitals
estimated to be 2.15 for hospitals that amount for the second half of FY 2010 based on the ‘‘empirical relationship’’
submit quality data or 0.15 percent for equal to the update factor applicable to between ‘‘the standardized cost-per-case
hospitals that fail to submit quality data. the national standardized amount or the for such hospitals and the total number
Similar to above, we are proposing to hospital-specific rates (that is the market of discharges of such hospitals and the
update §§ 412.73(c)(15), 412.75(d), basket minus 0.25 percentage points). amount of the additional incremental
412.77(e), 412.78(e), 412.79(d) to Accordingly, the FY 2010 update to the costs (if any) that are associated with
implement this provision. Puerto Rico-specific operating such number of discharges.’’ The statute
standardized amount is 2.1 percent (that thus mandates that the Secretary
3. FY 2010 and FY 2011 Puerto Rico is, the FY 2010 estimate of the market develop an empirically justifiable
Hospital Update basket rate-of-increase) for the entire FY adjustment based on the relationship
Puerto Rico hospitals are paid a 2010. between costs and discharges for these
blended rate for their inpatient For FY 2011, consistent with our past low-volume hospitals. The statute also
operating costs based on 75 percent of practice of applying the same update limits the adjustment to no more than
the national standardized amount and factor to the Puerto Rico-specific 25 percent.
Based on an analysis we conducted 2011 and 2012. We therefore are Part A coverage of a specific inpatient
for the FY 2005 IPPS final rule (69 FR proposing to revise our regulations at 42 stay. For example, a patient does not
49099 through 49102), a 25 percent low- CFR 412.101(a)(2) to provide that to lose entitlement to Medicare Part A
volume adjustment to all qualifying qualify for the low volume adjustment simply because the individual’s Part A
hospitals with less than 200 discharges in FYs 2011 and 2012, a hospital must hospital benefits have been exhausted;
was found to be most consistent with be more than 15 road miles from the other items and services (for example,
the statutory requirement to provide nearest subsection (d) hospital. The skilled nursing services) still might be
relief to low-volume hospitals where statute specifies the 15 mile distance in covered under Part A, and the patient
there is empirical evidence that higher ‘‘road miles’’. The current regulations at would qualify for an additional 90 days
incremental costs are associated with 42 CFR 412.101 also specify the current of Part A hospital benefits if at least 60
low numbers of total discharges. 25 mile distance requirement in ‘‘road days elapsed between the individual’s
In the FY 2006 IPPS final rule (70 FR miles,’’ but do not provide a definition first and second hospital stay. (See
47432 through 47434), we stated that a of the term ‘‘road miles.’’ We are § 409.60(a) and (b)(1) and § 409.61(a)(1)
multivariate analyses supported the proposing to define the term ‘‘road and (c).)
existing low-volume adjustment miles’’ consistent with the term ‘‘miles’’ In addition, beneficiaries who are
implemented in FY 2005. Therefore, the as defined at § 412.92 for purposes of enrolled in Medicare Advantage (MA)
low-volume adjustment of an additional determining whether a hospital qualifies plans provided under Medicare Part C
25 percent would continue to be as a sole community hospital. continue to meet all of the statutory
provided for qualifying hospitals with Specifically, the regulations at 42 CFR criteria for entitlement to Part A benefits
less than 200 discharges. 412.92(c)(i) define ‘‘miles’’ as ‘‘the under section 226. First, in order to
shortest distance in miles measured enroll in Medicare Part C, a beneficiary
2. Temporary Changes for FYs 2011 and
over improved roads. An improved road must be ‘‘entitled to benefits under Part
2012
for this purpose is any road that is A and enrolled under Part B,’’ see
Section 1886(d)(12) of the Act was maintained by a local, State, or Federal section 1852(a)(1)(B)(i) of the Act. There
amended by sections 3125 and 10314 of government entity and is available for is nothing in the Act that suggests
Public Law 111–148. These changes are use by the general public. An improved beneficiaries who enroll in Part C plan
effective only for FYs 2011 and 2012. road includes the paved surface up to forfeit their entitlement to Part A
Beginning with FY 2013, the pre- the front entrance of the hospital.’’ We benefits. Second, once a beneficiary
existing low-volume hospital payment note that while the proposed change in enrolls in Part C, the MA plan must
adjustment and qualifying criteria, as the qualifying criteria from 25 to 15 road provide the beneficiary with the benefits
implemented in FY 2005, will resume. miles is applicable only for FYs 2011 to which the enrollee is entitled under
Section 3125(3) and 10314(1) of and 2012, the proposed definition of Medicare Part A, even though it may
Public Law 111–148 amend the ‘‘road miles’’ would continue to apply also provide for additional
qualifying criteria for low-volume even after the distance requirement supplemental benefits. See section
hospitals under section 1886(d)(12)(C) reverts to 25 road miles beginning in FY 1852(a)(1)(A) of the Act. Third, under
of the Act to make it easier for hospitals 2013. certain circumstances, Medicare Part A
to qualify for the low-volume Sections 3125(3)(B) and (4)(D) and pays for care furnished to patients
adjustment. Specifically, the revised 10314(1) and (2) of Public Law 111–148, enrolled in Part C plans. For example,
provision specifies that for FYs 2011 revise the discharge requirement for FYs if, during the course of the year, the
and 2012, a hospital qualifies as a low- 2011 and 2012 to less than 1,600 scope of benefits provided under
volume hospital if it is ‘‘more than 15 discharges of individuals entitled to, or Medicare Part A expands beyond a
road miles from another subsection (d) enrolled for, benefits under Part A. certain cost threshold due to
hospital and has less than 1,600 Based on section 406 of Public Law Congressional action or a national
discharges of individuals entitled to, or 108–173, the discharge requirement to coverage determination, Medicare Part
enrolled for, benefits under Part A qualify as a low-volume hospital prior A will pay the provider for the cost of
during the fiscal year.’’ In addition, to FY 2011 and subsequent to FY 2012 the services directly. (See section
section 1886(d)(12)(C) of the Act, as is less than 800 discharges annually. For 1852(a)(5) of the Act.) Similarly,
amended, provides that the payment these fiscal years, the number of Medicare Part A also pays for Federally
adjustment (the applicable percentage discharges is determined based on total qualified health center services and
increase) is to be determined ‘‘using a discharges, which includes discharges hospice care furnished to MA patients.
continuous linear sliding scale ranging of both Medicare and non-Medicare See 42 U.S.C. section 1853(a)(4), (h)(2)
from 25 percent for low-volume patients. However, under sections 3125 of the Act. Thus, a patient enrolled in
hospitals with 200 or fewer discharges and 10314 of Public Law 111–148, for a Part C plan remains entitled to
of individuals entitled to, or enrolled FYs 2011 and 2012, the discharge benefits under Medicare Part A.
for, benefits under Part A in the fiscal requirement has been increased to less Accordingly, for purposes of
year to 0 percent for low-volume than 1,600 discharges of individuals determining the number of discharges
hospitals with greater than 1,600 ‘‘entitled to, or enrolled for, benefits for ‘‘individuals entitled to, or enrolled
discharges of such individuals in the under Part A during the fiscal year.’’ for, benefits under Part A,’’ we propose
fiscal year.’’ Section 226(a) of the Act (42 U.S.C. to include all discharges associated with
Section 3125(3)(A) of Public Law 426(a)) provides that an individual is individuals entitled to Part A, including
111–148 revises the distance automatically ‘‘entitled’’ to Medicare discharges associated with individuals
requirement for FYs 2011 and 2012 from Part A when the person reaches age 65 whose inpatient benefits are exhausted
‘‘25 road miles’’ to ‘‘15 road miles’’ such or becomes disabled, provided that the or whose stay was not covered by
that a low volume hospital is required individual is entitled to Social Security Medicare and discharges of individuals
to be only more than 15 road miles, benefits under section 202 of the Act (42 enrolled in an MA plan under Medicare
rather than more than 25 road miles, U.S.C. 402). Once a person becomes Part C. Since a hospital may only
from another subsection (d) hospital for entitled to Medicare Part A, the qualify for this adjustment if the
purposes of qualifying for the low- individual does not lose such hospital has fewer than 1,600 discharges
volume payment adjustment in FYs entitlement simply because there is no for patients entitled to Part A, the
hospital must submit a claim to every additional 100 Medicare hospital if it has less than 800
Medicare on behalf of all Part A entitled discharges, with no payment adjustment discharges, currently only hospitals
individuals, including a no-pay claim for hospitals with more than 1,599 with fewer than 200 discharges receive
for patients who are enrolled in Part C, Medicare discharges. We have not a payment adjustment, an additional 25
in order for Medicare to assure that proposed an adjustment for a hospital percent, because the statute requires
these discharges are included in the with exactly 1,600 discharges since, as that the adjustment be empirically based
determination of whether the hospital specified in statute at section to provide relief to low-volume
has fewer than 1,600 discharges for 1886(d)(12)(C)(i) of the Act, as amended, hospitals where there is empirical
patients entitled to Part A. a hospital must have ‘‘less’’ than 1,600 evidence that higher incremental costs
Currently, a prior cost reporting discharges in order to qualify as a low are associated with low numbers of total
period is used to determine if the volume hospital. The proposed payment discharges. Consistent with section
hospital meets the discharge criteria to adjustment would be as determined 1886(d)(12)(D) of the Act, for FYs 2011
receive the low-volume payment below: and 2012, we will continue to pay
adjustment in the current year. hospitals with fewer than 200
Finally, sections 3125(4) of Public Payment ad- discharges a payment adjustment
Law 111–148 and 10314(2), add a new Medicare discharge range justment amount equal to an additional 25
section 1886(d)(12)(D) of the Act that (percent
add-on) percent.
modifies the methodology for
We are proposing to revise our
calculation of the payment adjustment 1–200 ...................................... 25.0000 regulations at 42 CFR 412.101 to reflect
under section 1886(d)(12)(A) of the Act 201–300 .................................. 23.3333 our proposal outlined above.
for low-volume hospitals for discharges 301–400 .................................. 21.6667
occurring in FYs 2011 and 2012. 401–500 .................................. 20.0000 Currently, 42 CFR 412.101(a)(3) states
Currently, sections 1886(d)(12)(A) and 501–600 .................................. 18.3333 that ‘‘The fiscal intermediary makes the
(B) of the Act require the Secretary to 601–700 .................................. 16.6667 determination of the discharge count for
determine an applicable percentage 701–800 .................................. 15.0000 purposes of determining a hospital’s
increase for low-volume hospitals based 801–900 .................................. 13.3333 qualification for the adjustment based
901–1000 ................................ 11.6667 on the hospital’s most recent submitted
on the ‘‘empirical relationship’’ between 1001–1100 .............................. 10.0000
‘‘the standardized cost-per-case for such cost report.’’ This may mistakenly be
1101–1200 .............................. 8.3333
hospitals and the total number of 1201–1300 .............................. 6.6667 interpreted to mean that once a hospital
discharges of such hospitals and the 1301–1400 .............................. 5.0000 qualifies as a low-volume hospital, no
amount of the additional incremental 1401–1500 .............................. 3.3333 further qualification is needed. We,
costs (if any) that are associated with 1501–1599 .............................. 1.6667 therefore, are proposing to clarify that a
such number of discharges.’’ The statute 1600 or more .......................... 0.0000 hospital must continue to qualify as a
thus mandates the Secretary to develop low-volume hospital in order to receive
an empirically justifiable adjustment While we are proposing to revise the the payment adjustment in that year;
based on the relationship between costs qualifying criteria and the payment that is, it is not based on a one-time
and discharges for these low-volume adjustment for low-volume hospitals for qualification.
hospitals. The statute also limits the FYs 2011 and 2012, consistent with the
amendments made by the Affordable D. Medicare-Dependent, Small Rural
adjustment to no more than 25 percent. Hospitals (MDHs) (§ 412.108)
Based on analyses, we conducted for the Care Act, we note that we are not
FY 2005 IPPS final rule (69 FR 49099 proposing to modify the process for 1. Background
through 49102) and the FY 2006 IPPS requesting and obtaining the low-
final rule (70 FR 47432 through 47434), volume hospital payment adjustment. In Medicare-dependent, small rural
a 25 percent low-volume adjustment to order to qualify, a hospital must provide hospitals (MDHs) are eligible for the
all qualifying hospitals with less than to its FI or MAC sufficient evidence to higher of the Federal rate for their
200 discharges was found to be most document that it meets the number of inpatient hospital services or a blended
consistent with the statutory Medicare discharges and distance rate based in part on the Federal rate
requirement to provide relief to low- requirements. The FI or MAC will and in part on the MDH’s hospital-
volume hospitals where there is determine, based on the most recent specific rate. Section 1886(d)(5)(G)(iv) of
empirical evidence that higher data available, if the hospital qualifies the Act defines an MDH as a hospital
incremental costs are associated with as a low-volume hospital, so that the that is located in a rural area, has not
low numbers of total discharges. hospital will know in advance whether more than 100 beds, is not an SCH, and
However, section 1886(d)(12)(D) of the or not it will receive a payment has a high percentage of Medicare
Act, provides that for discharges adjustment and, if so, the add-on discharges (that is, not less than 60
occurring in FYs 2011 and 2012, the percentage. The FI or MAC and CMS percent of its inpatient days or
Secretary shall determine the applicable may review available data, in addition discharges either in its 1987 cost
percentage increase using a continuous, to the data the hospital submits with its reporting year or in two of its most
linear sliding scale ranging from an request for low-volume status, in order recent three settled Medicare cost
additional 25 percent payment to determine whether or not the hospital reporting years). The regulations that set
adjustment for hospitals with 200 or meets the qualifying criteria. forth the criteria that a hospital must
fewer Medicare discharges to 0 percent We also note that as compared to the meet to be classified as an MDH are at
additional payment for hospitals with existing methodology for determining 42 CFR 412.108.
more than 1,600 Medicare discharges. the payment adjustment for low-volume Although MDHs are paid under an
We propose to apply this payment hospitals, no hospital would receive a adjusted payment methodology, they are
adjustment based on increments of 100 lower payment adjustment under our still IPPS hospitals paid under section
discharges (beginning with 200 or fewer proposed methodology for FYs 2011 and 1886(d) of the Act. Like all IPPS
discharges), with the applicable 2012. Although the statute specifies hospitals paid under section 1886(d) of
percentage increase decreasing linearly that, for years other than FYs 2011 and the Act, MDHs are paid for their
in equal amounts by 1.6667 percent for 2012, a hospital is a low-volume discharges based on the DRG weights
calculated under section 1886(d)(4) of 2011 only. Section 3124 (a) of Public for determining the bottom quartile of
the Act. Law 111–148 amends sections counties with the lowest Medicare Part
Through and including FY 2006, 1886(d)(5)(G)(i) and (ii)(II) of the Act to A and Part B spending adjusted by age,
under section 1886(d)(5)(G) of the Act, extend the MDH program and payment sex, and race and invite public comment
MDHs are paid based on the Federal rate methodology from the end of FY 2011 on the methodology we propose to use
or, if higher, the Federal rate plus 50 to the end of FY 2012, by ‘‘striking to adjust for age, sex, and race described
percent of the amount by which the ‘‘October 1, 2011’’ and inserting ‘‘October below. We further propose that we will
Federal rate is exceeded by the updated 1, 2012’’.’’ Section 3125(b) of Public Law determine this bottom quartile of
hospital-specific rate based on the 111–148 also makes conforming counties one time in the FY 2011 IPPS/
hospital’s FY 1982 or FY 1987 costs per amendments to sections 1886(b)(3)(D)(i) RY 2011 LTCH PPS final rule for the
discharge, whichever of these hospital- and (iv) of the Act. Section 3124(b)(2) of purpose of disbursing the $400 million
specific rates is higher. Section 5003(b) Public Law 111–148 also amends as required by section 1109 of Public
of Public Law 109–171 (DRA 2005) section 13501(e)(2) of OBRA 1993 (42 Law 111–152.
amended section 1886(d)(5)(G) of the U.S.C. 1395ww note) to extend the We developed an adjustment model
Act to provide that, for discharges provision permitting hospitals to by age, sex, and race, as required under
occurring on or after October 1, 2006, decline reclassification as an MDH the provision. We then applied this
MDHs are paid based on the Federal rate through FY 2012. adjustment to the county Medicare Part
or, if higher, the Federal rate plus 75 A and Part B spending data to account
percent of the amount by which the E. Additional Payments for Qualifying for the demographics of the Medicare
Federal rate is exceeded by the updated Hospitals With Lowest Per Capita beneficiaries in those counties. After
hospital-specific rate based on the Medicare Spending those adjustments are applied, we
hospital’s FY 1982, FY 1987, or FY 2002 1. Background determined the Medicare Part A and
costs per discharge, whichever of these Part B spending by county per enrollee.
hospital-specific rates is highest. Section 1109 of Public Law 111–152, Our proposed methodology to
For each cost reporting period, the provides for additional payments for FY determine the Medicare Part A and Part
fiscal intermediary or MAC determines 2011 and 2012 for ‘‘qualifying B spending per enrollee by county
which of the payment options will yield hospitals.’’ Section 1109(d) defines a adjusted for age, sex, and race is similar
the highest aggregate payment. Interim ‘‘qualifying hospital’’ as a ‘‘subsection (d) to how we calculate risk adjustment
payments are automatically made at the hospital * * * that is located in a models for Medicare Advantage (MA)
highest rate using the best data available county that ranks, based upon its ratesetting. Risk adjustment for MA
at the time the fiscal intermediary or ranking in age, sex and race adjusted ratesetting is discussed in the annual
MAC makes the determination. spending for benefits under parts A and announcement of calendar year MA
However, it may not be possible for the B * * * per enrollee within the lowest capitation rates and MA and Part D
fiscal intermediary or MAC to determine quartile of such counties in the United payment policies. For more information
in advance precisely which of the rates States.’’ Therefore, a ‘‘qualifying on the methodology for risk adjustment
will yield the highest aggregate payment hospital’’ is one that meets the following used for MA ratesetting, we refer readers
by year’s end. In many instances, it is conditions: (1) A ‘‘subsection (d) to the CMS Web site where we
not possible to forecast the outlier hospital’’ as defined in section announce MA rates through our 45-day
payments, the amount of the DSH 1886(d)(1)(B) of the Act; and (2) located notice (http://www.cms.gov/
adjustment or the IME adjustment, all of in a county that ranks within the lowest MedicareAdvtgSpecRateStats/
which are applicable only to payments quartile of counties based upon its Downloads/Announcement2010.pdf).
based on the Federal rate and not to spending for benefits under Medicare
Part A and Part B per enrollee adjusted a. Development of Risk Adjustment
payments based on the hospital-specific
for age, sex, and race. Section 1109(b) of Model
rate. The fiscal intermediary or MAC
makes a final adjustment at the Public Law 111–152 makes available As required by section 1109(d) of
settlement of the cost report after it $400 million to qualifying hospitals for Public Law 111–152, we are proposing
determines precisely which of the FY 2011 and FY 2012. Section 1109(c) a risk adjustment model that accounts
payment rates would yield the highest of Public Law 111–152 requires the for differentials in Medicare spending
aggregate payment to the hospital. $400 million to be divided among each by age, sex, and race. Consistent with
If a hospital disagrees with the fiscal qualifying hospital in proportion to the how we develop our risk adjustment
intermediary’s or the MAC’s ratio of the individual qualifying models for MA ratesetting as described
determination regarding the final hospital’s FY 2009 IPPS operating above, we developed a prospective risk
amount of program payment to which it hospital payments to the sum of total FY adjustment model using 2006 data for
is entitled, it has the right to appeal the 2009 IPPS operating hospital payments beneficiary characteristics and 2007
determination in accordance with the made to all qualifying hospitals. data for Part A and Part B spending.
procedures set forth in 42 CFR Part 405, However, unlike the risk adjustment
2. Eligible Counties mode used for MA which includes
Subpart R, which govern provider
payment determinations and appeals. Section 1109 of Public Law 111–152 diseases and demographic factors, the
provides $400 million for FYs 2011 and only independent variables or
2. Extension of the MDH Program 2012 for supplemental payments to prospective factors in the model for
Section 3124 of Public Law 111–148 qualifying hospitals located in counties payments under section 1109 of Public
extends the MDH program, from the end that rank within the lowest quartile of Law 111–152 are age, sex and race, as
of FY 2011 (that is, for discharges before counties in the United States for required by the provision. The
October 1, 2011) to the end of FY 2012 spending for benefits under Medicare dependent variable was annualized
(that is, for discharges before October 1, Part A and Part B. The provision Medicare Part A and B spending at the
2012). Under prior law, as specified in requires that the Medicare Part A and beneficiary level for 2007 as it is the
section 5003(a) of Public Law 109–171 Part B county-level spending per most recent and complete data
(DRA of 2005), the MDH program was enrollee to be adjusted by age, sex and available. The categorization of age, sex,
to be in effect through the end of FY race. We are proposing our methodology and race variables are described below.
The age, sex, race (ASR) model(s) was calendar year as well as all living Part B spending based on our linear
estimated using the Five Percent beneficiaries whose race is identified as regression model.
Standard Analytic Denominator file, a ‘‘Other’’ or ‘‘Unknown.’’ In addition, we used the same linear
standard 5-percent sample from the Discussed in the context of the ESRD regression model to determine how to
2007 Denominator file which is also payment system in the ESRD proposed adjust Medicare Part A and Part B
used to estimate CMS risk adjustment rule on September 29, 2009 (74 FR spending for race. In addition to the age-
models for payment to MA 49962), we noted concerns with using sex regression categories described
organizations. We chose to use Five the EDB as a data source due to missing above, we included variables to adjust
Percent Standard Analytic Denominator data, and that racial and ethnic for race. We considered two methods to
file from 2007 in order to optimize the categories are not well defined. adjust for race in county spending
amount of time after the timely claim However, we believe that the current because of the way that the SS–5 form
submission deadlines and the latest EDB, particularly with respect to the collects race information, which is then
available data; in other words because it more recent and ongoing updates we reported in the same format in the EDB.
is most complete data currently perform, remains a useful source of race As discussed earlier, the EDB currently
available. This file has the demographic and ethnicity data on 46 million categorizes race by the following five
and enrollment characteristics of all Medicare beneficiaries. Additionally, categories, as reported by the Medicare
Medicare beneficiaries. The because this is our only currently beneficiary: (1) Asian, Asian-American
Denominator File is an abbreviated file available data source on the racial and or Pacific Islander; (2) Hispanic;
of the Enrollment Data Base (EDB). The ethnic demographics of Medicare (3) Black (Not Hispanic); (4) North
Denominator File contains data on all beneficiaries, we propose to use the EDB American Indian or Alaskan Native; and
Medicare beneficiaries enrolled and/or as our data source for beneficiary race (5) White (Not Hispanic). One method
entitled to be enrolled in Medicare in a so that we can fulfill the requirements
given year while the EDB is the source categorized race by White, Black,
of section 1109(d) of Public Law 111– Hispanic, and Other (WBHO). The
of enrollment and entitlement 152 to adjust county Medicare Part A
information for all people who are or ‘‘Other’’ category includes Asian/Pacific
and Part B spending by race. Islander, American Indian/Alaska
were ever entitled to Medicare. The We used the MedPAR claims file as
model was estimated using all Native, and all others. The second
the source to determine Medicare
beneficiaries residing in the community method categorized race by White,
inpatient spending. We used the
and long-term institutions. The sample Black, and Other (WBO), where
National Claims History File to
had 1,603,998 beneficiaries. beneficiaries who identified themselves
determine spending on DMEPOS and
The Denominator File contains a sex as Hispanic were categorized as Other.
supplies. The other spending under
variable where the beneficiaries can The race/ethnicity categories are
Medicare Part A and Part B was
identify themselves as male or female. mutually exclusive; if a beneficiary
determined using the Standard Analytic
The file also contains an age variable identified themselves as Hispanic he or
File. The Standard Analytic File and
which is defined as the beneficiary’s age she was not further classified as another
MedPAR claims file are subsets of the
at the end of the prior year. category, such as White or Black. In our
National Claims History File. These data
Beneficiaries with an age greater than 98 regression modeling we used the largest
files are also used in the MA ratesetting
are coded as age 98. The race group, White, as the reference group; the
process and are our data source for
demographic variable in the coefficients on the difference in
Medicare spending stored at the
Denominator File is populated by data spending by race, displayed in the table
beneficiary level.
from the Social Security Administration In order to determine annual below, are additive to the reference
(SSA). The SSA’s data for this race spending (the dependent variable in the group. In other words, the coefficients
demographic variable are collected on risk adjustment model), we annualized for each race category represent the
form SS–5. Prior to 1980, the SS–5 form the Medicare Part A and Part B difference in predicted Medicare Part A
included 3 categories for race: White, spending for beneficiaries with less than and Part B spending relative to our
Black or Other. Since that time, Form a full year of eligibility, and these reference group. Where the coefficients
SS–5 instructed a beneficiary to amounts were weighted in the analysis are positive, this implies that the
voluntarily select one of the following 5 by the fraction of the year they were in predicted spending for that category is
categories: (1) Asian, Asian-American or the data. higher than that of the reference group.
Pacific Islander; (2) Hispanic; (3) Black We used a linear regression model to Conversely, where the coefficients are
(Not Hispanic); (4) North American determine the demographic negative, this implies that the predicted
Indian or Alaskan Native; and (5) White adjustments. This is consistent with spending for that category is lower than
(Not Hispanic). Form SS–5 is completed how we model our risk adjustment for that of the reference group.
when an individual does the following: the MA rates. The linear regression used Below are two tables representing the
(1) Applies for a social security number; 24 age-sex regression categories, 12 age coefficients used to adjust Medicare Part
(2) requests a replacement of the social categories each for males and females. A and Part B spending by county. The
security card; or (3) requests changes to The age categories are as follows; 0–34, first table shows the coefficients for
personal information on their record 35–44, 45–49, 50–54, 55–59, 60–64, 65– each age and sex category. The second
such as a name change. (Social Security 69, 70–74, 75–79, 80–84, 85–89, and table shows the coefficients for race.
Administration Web site instructions 90+. The age-sex coefficients displayed These national coefficients are applied
http://ssa.gov/online/ss-5.pdf). Each in the table below reflect the difference to each counties’ relative demographic
January, CMS obtains data from SSA to in Medicare Part A and Part B spending for age, sex and race, so that each
update the EDB for beneficiaries who per enrollee in those age-sex categories county has a risk score by age, sex and
were added during the previous relative to national average Part A and race.
Age categories (in years)

Sex Greater
0–34 35–44 45–54 55–59 60–64 65–69 70–74 75–79 80–84 85–89 90–94 than 95
Female ...................... 0.67896 0.80089 0.96917 1.09810 1.18855 0.67358 0.83818 1.01599 1.189727 1.364575 1.475495 1.366515
Male ........................... 0.52664 0.70067 0.82262 0.93750 1.03792 0.71932 0.90896 1.11809 1.32812 1.50008 1.68184 1.77046
Race Coefficient We found that some counties would information was first extracted from the
qualify as an eligible county only under EDB. We chose to calculate Medicare
White ...................................... Baseline. the WBO methodology, and others Part A and Part B county spending for
Black ...................................... 0.17667. would no longer qualify as an eligible 2009 to be consistent with how we are
Hispanic ................................. 0.229. county using this alternative. The required to determine qualifying
Other ...................................... ¥0.110. decision to use the WBHO methodology hospitals’ payment amounts, under
affects whether 9 subsection (d) section 1109(c) of Public Law 111–152.
We are proposing to adjust for race hospitals, located in 5 counties, would
using the WBHO method where we That is, section 1109(c) of Public Law
be eligible to receive a payment under 111–152 requires that qualifying
separately account for cost differences section 1109. In Table 3, we publish the
associated with Hispanic beneficiaries. hospitals located in the bottom quartile
differences in counties, eligible of counties with the lowest Medicare
The Office of Management and Budget hospitals, and payments by State under
(OMB) has promulgated standards for Part and Part B spending per enrollee
the two methodologies. This is the first will receive a portion of the allotted
the classification of Federal data on race time we have developed an adjustment
and ethnicity. Under OMB’s $400 million based on their FY 2009
for Medicare spending based on race, operating payments. Therefore, we
classification standards, the category of and we welcome public comment on
Hispanic is treated as an ethnic category propose to calculate Medicare Part A
our proposal to use the WBHO and Part B County spending for 2009 as
as opposed to a race category. The methodology to adjust for race as
current OMB Standards of 1997 require well. We only include beneficiaries
required by section 1109 of Public Law
collection of specific demographic data enrolled in Medicare Part A and/or Part
111–152. We also welcome public
using a total of five race categories, plus B, consistent with the language of
comment on the WBO methodology to
other (62 FR 58782 through 58790). The section 1109(d) of Public Law 111–152,
adjust for race though we note that we
five race categories are—(1) American which refers to spending under Part A
are not proposing this methodology at
Indian or Alaska Native; (2) Asian; (3) this time. and B. Based on these criteria, there
Black or African American; (4) Native were 30,666,295 beneficiaries included
Hawaiian or Other Pacific Islander; and b. Calculation of County Level Part A in the adjustment process. To determine
(5) White. In addition, OMB specified and Part B Spending the age, sex and race make-up of the
two separate ethnic categories— In order to rank counties by Medicare Part A and/or Part B beneficiaries for
Hispanic or Latino, and not Hispanic or Part A and B spending, we first each county, we used the EDB to
Latino. However, as explained above, calculated Medicare Part A and Part B identify date of birth, sex, race, and
Hispanic or Latino ethnicity is treated as county level spending for each county State/county of residence to create a
a race category by EDB, and in the 50 States and the District of person level file with the data needed to
beneficiaries can self-identify as Columbia using a similar methodology run the ASR model.
Hispanic among mutually exclusive used to establish county level FFS rates A county level average risk score was
racial categories. Despite the for MA payments. Using a 5 year developed for each county in the United
inconsistency in reporting by the OMB average of each county’s actual States by applying the ASR model to
and the EDB, we propose to treat the spending (from 2002 to 2006), CMS’s each individual in the county enrolled
category of Hispanic as a separate Office of the Actuary calculated an in Medicare Part A and/or Part B,
category for purposes of the race average geographic adjuster (AGA), summing the resulting risk scores and
adjustment required by section 1109 of which reflects the county’s expenditure dividing by the number of beneficiaries
Public Law 111–152. We found that the relative to the national expenditure. We by county enrolled in Medicare Part A
coefficient for the Hispanic category is believe a 5-year average is appropriate, and/or Part B. The county level
statistically significant, suggesting that as it accounts for fluctuations in year-to- Medicare Part A and or Part B spending
Medicare Part A and Part B spending year expenditures, which could distort was adjusted by dividing the county
associated with this category of the counties’ historic level of spending level Medicare Part A and/or Part B
beneficiaries is different from the and is consistent with how MA rates are spending by the county level average
spending for our reference group and calculated. The AGA was then applied risk score. The resulting spending
that it should be a separate coefficient to the 2009 United States Per Capita distribution was then sorted lowest to
to adjust county spending. In addition, Cost estimate (USPCC), which is the highest dollars the 786 counties in the
the EDB treats Hispanic as a separate national average cost per Medicare lowest quartile of spending (that is,
racial classification, consistent with our beneficiary, to determine 2009 Medicare
WBHO method, therefore; we believe lowest adjusted spending per enrollee)
Part A and Part B spending for each were determined to be eligible counties
that our proposal appropriately county. We welcome public comment
interprets the required race adjustment. under section 1109 of Public Law 111–
on this methodology to calculate 152.
Therefore, we propose to adjust for race county-level Part A and Part B

using the WBHO method. spending. We invite comment on our
For purposes of this supplemental methodology for determining the age,
proposed rule, we also adjusted county 3. Application of the Age/Sex/Race sex, race adjustments for determining
spending using the WBO methodology Adjustment to Part A and Part B County adjusted Medicare Part A and B
to compare the two approaches. We Spending spending by county for the purpose of
found minimal difference in the county To estimate the county level risk determining eligible counties under
rankings under the two methodologies. scores for 2009, beneficiary enrollment section 1109 of Public Law 111–152.
3. Qualifying Hospitals and Annual Number or CCN, must: (1) Have existed and their payment amounts under
Payment Amounts as a subsection (d) hospital as of April section 1109 of Public Law 111–152
We have developed a methodology to 1, 2010; (2) be geographically located in only once. Because Congress has
identify the qualifying hospitals located an eligible county; and (3) have received allocated a specific amount of money,
in our list of eligible counties. IPPS operating payments (in accordance we are proposing to identify eligible
Consistent with section 1109(d) of with section 1886(d)) of the Act under counties, qualifying hospitals and their
Public Law 111–152, a qualifying their Medicare provider number in FY payment amounts once in order to
hospital is a ‘‘subsection (d) hospital’’ (as 2009. We used the Online Survey, ensure we do not exceed the fixed
defined for purposes of section 1886(d) Certification and Reporting (OSCAR) amount of money and to ensure
of the Act) that is ‘‘located in’’ an eligible database to determine a hospital’s predictability of payments.
county (as identified using the county location associated with that
CCN provider number. County data in We propose to distribute payments
methodology proposed in section B). A through the individual hospital’s
subsection (d) hospital is defined in OSCAR is supplied by the U.S Postal
Service and is cross walked to the Medicare contractor through an annual
section 1886(d)(1)(B) of the Act in part one-time payment during each of FY
as a ‘‘hospital located in one of the fifty address reported by the provider. Under
this proposal, the address listed for a 2011 and FY 2012. We believe that
States or the District of Columbia’’. The
hospital’s Medicare provider number annual payments made by the FI or
term ‘‘subsection (d) hospital’’ does not
must be currently located in a qualifying A/B MACs would be an expeditious
include hospitals located in the
county in order for a hospital to meet way to give the qualifying hospitals the
territories or hospitals located in Puerto
the definition of ‘‘qualifying hospital.’’ money allotted under section 1109 of
Rico. Section 1886(d)(9)(A) of the Act We have published a list of the
separately defines a ‘‘subsection (d) Public Law 111–152. Alternatively,
qualifying IPPS hospitals that we have these payments could be distributed to
Puerto Rico hospital’’ as a hospital that identified based on the factors described
is located in Puerto Rico and that qualifying hospitals at the time of cost
above in Table 3. We invite comment on report settlement for the qualifying
‘‘would be a subsection (d) hospital our methodology for identifying
* * * if it were located in one of the 50 providers’ fiscal year end FY 2011 and
qualifying hospitals. We also invite FY 2012 cost reports. However, cost
States.’’ Therefore, Puerto Rico hospitals comment on whether our list is accurate
are not eligible for these additional report settlement typically takes several
and whether any providers are missing years beyond a hospital’s fiscal year
payments. Indian Health Services from this list using the methodology
hospitals enrolled as a Medicare end. If we distributed these additional
described above.
provider meet the definition of a payments at the time of cost report
subsection(d) hospital and can qualify 4. Payment Determination and settlement, it may take several years
to receive this payment if they are Distribution until hospitals receive these additional
located in an eligible county. In As mentioned above, under section payments. Therefore, we believe our
addition, hospitals that are MDHs and 1109(b), the total pool of payments proposal to give hospitals their section
sole community hospitals (SCHs), available to qualifying hospitals for FY 1109 payments as annual payments
though they can be paid under a 2011 and FY 2012 is $400 million. The during FY 2011 and FY 2012 presents
hospital-specific rate instead of under statute is not specific as to the timing of the most expedient method to distribute
the Federal standardized amount under these payments. Since Congress has these payments to hospitals, and is in
the IPPS, are ‘‘subsection (d)’’ hospitals. allocated a set amount—$400 million— the spirit of the intent of Congress. We
The statutory definition of a ‘‘subsection for hospitals for FYs 2011 and 2012 welcome public comment on our
(d)’’ hospital in section 1886(d)(1)(B) of under this provision, we believe it is proposal to distribute $150 million in
the Act specifically excludes hospitals consistent with the statute to spread FY 2011 and $250 million in FY 2012
and hospital units excluded from the these payments over the 2-year period. through an annual payment in each of
IPPS, such as psychiatric, rehabilitation, We are proposing to distribute $150 those years made to the qualifying
long term care, children’s, and cancer million for FY 2011 and $250 million providers through their FI or A/B MAC.
hospitals. In addition, critical access for FY 2012. Because this is a new
We propose that qualifying hospitals
hospitals (CAHs) are not considered policy, we are proposing to distribute a
report these additional payments on
qualifying hospitals because they do not smaller amount of money for the first
their Medicare hospital cost report
meet the definition of a ‘‘subsection (d) year ($150 million for FY 2011 and $250
hospital’’ as they are paid under section million for FY 2012) so that the public corresponding to the appropriate cost
1814(l) of the Act. CAHs are not paid will have an opportunity to review our reporting period that the hospitals have
under the IPPS; rather they are paid proposal and finalized policy in the FY received the payments. On the Medicare
under a reasonable cost methodology, so 2011 IPPS/LTCH PPS final rule, and Hospital Cost report, Form 2552 has an
they do not meet the definition of notify us of any possible revisions to the ‘‘other adjustment’’ line on Worksheet E,
‘‘qualifying hospital’’ under section list of qualifying hospitals, so that we Part A that can used by hospitals to
1109(d) of Public Law 111–152. can adjust payments for FY 2012. This report the payments received under
For the purposes of section 1109 of will ensure that we correctly identify section 1109 of Public Law 111–152. We
Public Law 111–152, we are proposing qualifying hospitals and their proper plan to issue additional cost reporting
to identify ‘‘qualifying hospitals’’ based payment amounts without exceeding instructions for qualifying hospitals to
on their Medicare Provider number or the program’s funding. We invite public report these additional payments on a
Centers for Medicare and Medicaid comment to give hospitals the subscripted line of the ‘‘other
Services Certification Number (CCN), opportunity to request that we make adjustment’’ line to identify this
because this is also how hospitals changes to the qualifying hospital list in payment. We note that we are requiring
identify themselves when they file their order to ensure the accuracy of the these payments be reported on the cost
Medicare cost reports. We also propose qualifying hospital list based on the report for tracking purposes only; these
that in order to meet the definition of a methodology set forth in the final rule. additional payments will not be
‘‘qualifying hospital’’, the facility, as However, we are proposing to identify adjusted or settled by the FI or A/B
identified by the Medicare Provider eligible counties, qualifying hospitals MAC on the cost report.
5. Hospital Weighting Factors 2009 MedPAR inpatient claims data to include SCHs and MDHs as they meet
Section 1109(c) of Public Law 111– determine the FY 2009 IPPS operating the definition of subsection (d)
152 requires that the payment amount payments amount made to qualifying hospitals. SCHs are paid in the interim
for a qualifying hospital shall be hospitals in order to set the ratio for (prior to cost report settlement) on a
determined ‘‘in proportion to the portion determining a qualifying hospital’s claim by claim basis at the amount that
of the amount of the aggregate payments share of the $400 million payment is the higher of the payment based on
under section 1886(d) of the Social under section 1109 of Public Law 111– the hospital-specific rate or the IPPS
Security Act to the hospital for fiscal 152. Though these claim payments may Federal rate based on the standardized
year 2009 bears to the sum of all such be later changed and adjusted at cost amount. At cost report settlement, the FI
payments to all qualifying hospitals for report settlement, this settlement or A/B MAC determines if the hospital
such fiscal year.’’ We are proposing that generally occurs after FY 2011 and FY would receive higher IPPS payments in
the portion of a hospital’s payment 2012. Furthermore, we believe that use the aggregate using the hospitals
under section 1109 is based on the of the FY 2009 MedPAR inpatient specific rate (on all claims) or the
proportion of their IPPS operating claims data is consistent with our Federal rate (on all claims). The FI or
payments made in FY 2009 relative to proposal to make the payments under A/B MAC then assigns the hospital the
the total IPPS operating payments made section 1109 of Public Law 111–152 in higher payment amount (either the
to all qualifying hospitals in FY 2009. two annual payments in FY 2011 and hospital specific rate for all claims or
These FY 2009 IPPS operating payments 2012 instead of waiting for cost report the Federal rate amount for all claims)
made under section 1886(d) include settlement. Furthermore, we use for the cost reporting period. To
DRG and wage adjusted payments made MedPAR data in other areas of the IPPS, determine the FY 2009 operating
under the IPPS standardized amount including calculating IPPS relative payment amount for SCHs that meet the
with add-on payments for operating weights, budget neutrality factors, definition of a qualifying hospital, we
DSH, operating IME, operating outliers outlier thresholds and the standardized propose to use the IPPS operating
and new technology (collectively amount. The FY 2009 MedPAR data can
payment made on the Medicare IPPS
referred to in this proposed rule as the be ordered to allow the public to verify
claim in the FY 2009 MedPAR rather
IPPS operating payment amount). We qualifying hospitals’ FY 2009 IPPS
than the SCH’s final payment rate that
are proposing to include IME MA operating payments. Interested
is determined at cost report settlement.
payments made to IPPS hospitals individuals may order these files
We believe this approach is consistent
because these payments are made under through the Web site at: http://
with the treatment of other qualifying
section 1886(d) of the Act. Under 42 www.cms.hhs.gov/LimitedDataSets/ by
hospitals under our proposal, and again
CFR 412.105(g) of the regulations and as clicking on MedPAR Limited Data Set
allows for the timely distribution of
implemented in Transmittal A–98–21 (LDS)-Hospital (National). This Web
funds in two annual payments, as
(Change Request 332), hospitals that are page describes the file and provides
discussed above. MDHs are paid the
paid under the IPPS and train residents directions and further detailed
instructions for how to order. sum of the Federal payment amount
in approved GME programs may submit plus 75 percent of the amount by which
claims associated with MA enrollees to Persons placing an order must send
the following: a Letter of Request, the the hospital specific rate exceeds the
the FI/MAC for the purpose of receiving Federal payment amount. This amount
an IME payment. No IPPS operating LDS Data Use Agreement and Research
Protocol (refer to the Web site for further is considered their IPPS operating
payment or other add-on payment is payment reported on their Medicare
made for these MA enrollees. This is instructions), the LDS Form, and a
check for $3,655 to: IPPS claim.
consistent with how the IPPS includes
these IME MA payments when adjusting Mailing address if using the U.S. Postal In order to calculate payment
for budget neutrality of the IPPS Service: Centers for Medicare & amounts consistent with section 1109(c)
standardized amounts. Medicaid Services, RDDC Account, of Public Law 111–152, we propose to
In addition, we are including in the Accounting Division, P.O. Box 7520, use a weighting factor for each
FY 2009 IPPS operating payment Baltimore, MD 21207–0520. qualifying hospital that is equal to the
amount beneficiary liabilities Mailing address if using express mail: qualifying hospital’s FY 2009 IPPS
(coinsurance, copayments, and Centers for Medicare & Medicaid operating payment amount (as described
deductibles) because the payments Services, OFM/Division of above) divided by the sum of FY 2009
made under section 1886(d) of the Act Accounting—RDDC, Mailstop C3–07– IPPS operating payment amounts for all
‘‘are subject to the provisions of section 11, 7500 Security Boulevard, qualifying hospitals. We believe this
1813.’’ That is, the payment received by Baltimore, MD 21244–1850. methodology is consistent with the
the hospital includes the amount paid For this proposed rule, we used the requirement of section 1109(c) of Public
by Medicare, as well as the amount for December 2009 update to the FY 2009 Law 111–152, because qualifying
which the beneficiary is responsible, as MedPAR data (which is the latest hospitals with a larger proportion of
set forth in section 1813 of the Act. We available update to the file) to determine operating payments would have a
propose to exclude IPPS capital the proposed qualifying hospitals’ IPPS proportionately higher weighting factor
payments because they are payments operating payment amounts. For the FY and would receive the proportionately
made under section 1886(g) of the Act. 2011 IPPS/LTCH PPS final rule, we plan larger share of the $400 million, while
We also propose to exclude payments on using the March 2010 update to the hospitals with a smaller proportion of
for organ acquisition costs because it is FY 2009 MedPAR data to determine operating payments would have
a payment made under section 1881(d) qualifying hospitals’ IPPS operating proportionately smaller weighting factor
of the Act and we propose to exclude payment amounts which will then be and would receive proportionately
payments for blood clotting factor used to set the hospital weighting smaller shares of the $400 million. We
because they are payments made under factors for FYs 2011 and 2012 welcome public comment on our
section 1886(a)(4) of the Act. As discussed earlier in section II.E.3. methodology to determine the amount
Consistent with our IPPS ratesetting of the preamble to this supplemental of money distributed to qualifying
process, we are proposing to use the FY proposed rule, qualifying hospitals can hospitals consistent with the language
in section 1109(c) of Public Law 111– We have listed the qualifying IPPS 7. Finalization of Eligible Counties,
152. provider numbers, their counties and Qualifying Hospitals and Qualifying
their weighting factors in Table 2. We Hospitals’ Weighting Factors
6. Results
invite public comment on our proposed Based on public comments, it is
In calculating county-level Medicare methodology for adjusting spending for possible that we will finalize a
Part A and B spending, we have found age, sex, and race as well as the methodology to determine the list of
that there are 3,144 counties in the alternative methodology discussed in eligible counties and hospitals that
United States. Therefore, there are 786 section II.E.2.a. of the preamble to this differs from our current proposal. A
counties that rank in the lowest quartile supplemental proposed rule. For these change in our methodology could, in
of counties with regards to adjusted two methodologies (WBHO and WBO), turn, result in changes to the list of
Medicare Part A and Part B spending we list the number of eligible counties, eligible counties or qualifying hospitals.
per beneficiary. We have listed the 786 the number of eligible counties in which We note again that we are proposing to
eligible counties in Table 2. Of those a qualifying hospital is located, the identify eligible counties, qualifying
786 eligible counties, there are only 276 payment amount, and the percentage of providers and their payments under
counties in which qualifying hospitals the total payment under section 1109 of section 1109 of Public Law 111–152
are located, using the methodology we Public Law 111–152 by State in Table 3. only once in the FY 2011 IPPS/LTCH
proposed in section II.E.3. of the PPS final rule. Based on this proposal,
We invite public comment on the
preamble to this supplemental proposed the methodology for determining a final
rule. Using Medicare provider numbers, accuracy of the lists of eligible counties, list of eligible counties would produce
as proposed above in section II.E.3. of qualifying hospitals and qualifying the actual list of eligible counties that
the preamble to this supplemental hospitals’ payment weighting factors would be finalized in the FY 2011 IPPS
proposed rule, we have identified 415 (based on the proposed methodologies final rule and would not be updated in
IPPS hospitals that are currently located described above). a future fiscal year based on updated
in those eligible counties and received data.
IPPS operating payments in FY 2009. BILLING CODE 4120–01–P
EP02JN10.000</GPH>
EP02JN10.001</GPH>
EP02JN10.002</GPH>
EP02JN10.003</GPH>
EP02JN10.004</GPH>
EP02JN10.005</GPH>
EP02JN10.006</GPH>
EP02JN10.007</GPH>
EP02JN10.008</GPH>
EP02JN10.009</GPH>
EP02JN10.010</GPH>
EP02JN10.011</GPH>
EP02JN10.012</GPH>
EP02JN10.013</GPH>
EP02JN10.014</GPH>
EP02JN10.015</GPH>
EP02JN10.016</GPH>
EP02JN10.017</GPH>
EP02JN10.018</GPH>
EP02JN10.019</GPH>
EP02JN10.020</GPH>
EP02JN10.021</GPH>
EP02JN10.022</GPH>
EP02JN10.023</GPH>
EP02JN10.024</GPH>
EP02JN10.025</GPH>
EP02JN10.026</GPH>
EP02JN10.027</GPH>
EP02JN10.028</GPH>
BILLING CODE 4120–01–C additional hospitals began under the commonly referred to as ‘‘budget
F. Rural Community Hospital demonstration payment methodology neutrality’’.
Demonstration Program with the hospital’s first cost reporting Generally, when we implement a
period starting on or after July 1, 2008. demonstration program on a budget
1. Background Three hospitals (two of the hospitals neutral basis, the demonstration
Section 410A(a) of the Medicare were among the thirteen hospitals that program is budget neutral in its own
Prescription Drug, Improvement, and were original participants in the terms; in other words, the aggregate
Modernization Act of 2003 (MMA), demonstration and one of the hospitals payments to the participating hospitals
Public Law 108–173, required the was among the four hospitals that began do not exceed the amount that would be
Secretary to establish a demonstration the demonstration in 2008) withdrew paid to those same hospitals in the
program to test the feasibility and from the demonstration during CY 2009. absence of the demonstration program.
advisability of establishing ‘‘rural (Two of these hospitals indicated that Typically, this form of budget neutrality
community hospitals’’ to furnish they will be paid more for Medicare is viable when, by changing payments
covered inpatient hospital services to inpatient services under the rebasing or aligning incentives to improve overall
Medicare beneficiaries. The allowed under the SCH methodology efficiency, or both, a demonstration
demonstration pays rural community allowed by the Medicare Improvement program may reduce the use of some
hospitals for such services under cost for Patients and Providers Act of 2008 services or eliminate the need for others,
based methodology for Medicare (Pub. L. 110–275). The other hospital resulting in reduced expenditures for
payment purposes for covered inpatient restructured to become a CAH.) For the demonstration program’s
hospital services furnished to Medicare purposes of the analyses that follow in participants. These reduced
beneficiaries. A rural community section II.F.3 of the preamble, we make expenditures offset increased payments
hospital, as defined in section the assumption that there are 10 elsewhere under the demonstration
410A(f)(1) of MMA, is a hospital that— currently participating hospitals (8 program, thus ensuring that the
• Is located in a rural area (as defined hospitals that are actively participating demonstration program as a whole is
in section 1886(d)(2)(D) of the Act) or is since the initial demonstration period budget neutral or yields savings.
treated as being located in a rural area had not yet concluded for them at the However, the small scale of this
under section 1886(d)(8)(E) of the Act; time of the passage of Public Law 111– demonstration program, in conjunction
• Has fewer than 51 beds (excluding 148 and 2 hospitals that concluded the with the payment methodology, makes
beds in a distinct part psychiatric or demonstration in December 2009 upon it extremely unlikely that this
rehabilitation unit) as reported in its the conclusion of their initial demonstration program could be viable
most recent cost report; demonstration period). For the 2 under the usual form of budget
• Provides 24-hour emergency care hospitals that concluded the neutrality. Specifically, cost-based
services; and demonstration in December 2009, we payments to participating small rural
• Is not designated or eligible for assume that they will continue the hospitals are likely to increase Medicare
designation as a CAH under section demonstration under the 5-year outlays without producing any
1820 of the Act. extension provided by Affordable Care offsetting reduction in Medicare
Subsection 410A(a)(4) of the MMA, in Act since they participated in their expenditures elsewhere. Therefore, a
conjunction with paragraphs (2) and (3) entire initial 5-year demonstration rural community hospital’s
of subsection 410A(a), provided that the period, which we believe indicates that participation in this demonstration
Secretary was to select for participation those hospitals favored the payment rate program is unlikely to yield benefits to
no more than 15 rural community provided in the demonstration and will the participant if budget neutrality were
hospitals in rural areas of States that the continue to avail themselves of such to be implemented by reducing other
Secretary identified as having low reimbursement. payments for these same hospitals.
population densities. Using 2002 data Section 410A(a)(5) of Public Law 108– In the past six IPPS final regulations,
from the U.S Census Bureau, we 173 required a 5-year demonstration spanning the period for which the
identified the 10 States with the lowest period of participation. Prior to the demonstration has been implemented,
population density in which rural enactment of Public Law 111–148, for we have adjusted the national inpatient
community hospitals were to be located the seven currently participating PPS rates by an amount sufficient to
in order to participate in the hospitals that began the demonstration account for the added costs of this
demonstration: Alaska, Idaho, Montana, during FY 2005 (‘‘originally demonstration program, thus applying
Nebraska, Nevada, New Mexico, North participating hospitals’’), the budget neutrality across the payment
Dakota, South Dakota, Utah, and demonstration was scheduled to end for system as a whole rather than merely
Wyoming. (Source: U.S. Census Bureau, each of these hospitals on the last day across the participants in this
Statistical Abstract of the United States: of its cost reporting period that ends in demonstration program. As we
2003). FY 2010. The end of the participation discussed in the FY 2005, FY 2006, FY
We originally solicited applicants for for the three participating hospitals that 2007, FY 2008, FY 2009, and FY 2010
the demonstration in May 2004; 13 began the demonstration in CY 2008 IPPS final rules (69 FR 49183; (70 FR
hospitals began participation with cost was scheduled to be September 30, 47462); (71 FR 48100); (72 FR 47392);
report years beginning on or after 2010. (73 FR 48670); and (74 FR 43922)), we
October 1, 2004. (Four of these 13 In addition, section 410A(c)(2) of believe that the language of the statutory
hospitals withdrew from the program Public Law 108–173 requires that, ‘‘[i]n budget neutrality requirements permits
and became CAHs). In a notice conducting the demonstration program the agency to implement the budget
published in the Federal Register on under this section, the Secretary shall neutrality provision in this manner.
February 6, 2008 (73 FR 6971), we ensure that the aggregate payments In light of the statute’s budget
announced a solicitation for up to 6 made by the Secretary do not exceed the neutrality requirement, we proposed in
additional hospitals to participate in the amount which the Secretary would have the May 4, 2010 FY 2011 IPPS/LTCH
demonstration program. Four additional paid if the demonstration program PPS proposed rule (75 FR 24012) a
hospitals were selected to participate under this section was not methodology to calculate a budget
under this solicitation. These four implemented.’’ This requirement is neutrality adjustment factor to the FY
2011 national IPPS rates. In the May 4, Public Law 111–148 and as further 3. Proposed FY 2011 Budget Neutrality
2010 FY 2011 IPPS/LTCH PPS proposed amended by section 10313 of Public Adjustment
rule, the only amount that was Law 111–148). Further, the Affordable In order to ensure that the
identified to be offset for the FY 2011 Care Act requires that in the case of a demonstration is budget neutral as is
IPPS/LTCH final rule was that by which rural community hospital that is required by the statute, we are
the costs of the demonstration program, participating in the demonstration proposing to adjust the national IPPS
as indicated by settled cost reports program as of the last day of the initial rates in the FY 2011 IPPS final rule to
beginning in FY 2007 for hospitals 5-year period, the Secretary shall account for any added costs attributable
participating in the demonstration provide for the continued participation to the demonstration. Specifically, the
during FY 2007, exceeded the amount proposed budget neutrality adjustment
of such rural hospital in the
that was identified in the FY IPPS 2007
demonstration program during the would account for: (1) The estimated
final rule as the budget neutrality offset
5-year extension unless the hospital costs of the demonstration in FY 2011
for FY 2007. No dollar amount was
makes an election, in such form and for the 10 currently participating
specified for purpose of this offset,
manner as the Secretary may specify, to hospitals; (2) the estimated FY 2010
because of a delay in the settlement
discontinue such participation. (Section costs of the demonstration that were not
process of FY 2007 cost reports. Due to
410A(g)(4)(A) of MMA as added by accounted for in the FY 2010 IPPS/RY
the timing of the proposed rule in
section 3123(a) of Public Law 111–148 2010 LTCH PPS final rule for the seven
relation to the passage of Public Law
and as amended by section 10313 of ‘‘originally participating hospitals’’
111–148, we were unable to include in
Public Law 111–148). In addition, it because we estimated those hospitals’
the proposed budget neutrality
adjustment factor to the FY 2011 provides that during the 5-year FY 2010 costs under the assumption
national IPPS rates an offset that would extension period, the Secretary shall that the demonstration would be
accont for the estimated financial concluding before the end of FY 2010
expand the number of States with low
impact that the demonstration would for those hospitals; (3) the estimated FY
population densities determined by the
have for certain time frames under the 2011 costs for up to 20 new hospitals
Secretary to 20. (Section 410A(g)(2) of selected to participate in the
extension required by such Act. MMA as added by section 3123(a) of
In this supplemental proposed rule, demonstration; and (4) the amount by
Public Law 111–148 and as amended by which the costs of the demonstration
we propose that such an adjustment section 10313 of Public Law 111–148.)
would incorporate the following 4 program, as indicated by settled cost
Further, the Secretary is required to use reports beginning in FY 2007 for
components: (1) The estimated costs
the same criteria and data that the hospitals participating in the
that would be incurred in FY 2011 for
Secretary used to determine the States demonstration during FY 2007,
the 10 currently participating hospitals
as a result of the demonstration’s under section 410A(a)(2) of MMA for exceeded the amount that was identified
continuation in FY 2011; (2) the purposes of the initial 5-year period. It in the FY 2007 IPPS final rule as the
estimated cost incurred in FY 2010 for also allows not more than 30 rural budget neutrality offset for FY 2007.
the 7 ‘‘originally participating hospitals’’ community hospitals in such States to
a. Component of the Proposed FY 2011
that were not accounted for in the FY participate in the demonstration during
Budget Neutrality Adjustment That
2010 IPPS final rule but that now must the 5-year extension period. (Section
Accounts for Estimated FY 2011 Costs
be accounted for as a result of the 410A(g)(3) of MMA as added by section of the Demonstration of the Ten
demonstration being continued by the 3123(a) of Public Law 111–148 and as Currently Participating Hospitals
Affordable Care Act’s 5-year extension amended by section 10313 of Public
for such hospitals; (3) the estimated FY Law 111–148.) Additionally, it provides The component of the proposed FY
2011 demonstration costs associated that the amount of payment under the 2011 budget neutrality adjustment to the
with the participation of up to 20 new demonstration program for covered national IPPS rates that accounts for the
hospitals; and (4) a factor by which the estimated cost of the demonstration in
inpatient hospital services furnished in
cost of the demonstration program in FY 2011 for the ten currently
a rural community hospital, other than
2007, as indicated by settled cost reports participating hospitals would be
services furnished in a psychiatric or calculated by utilizing separate
beginning in FY 2007, exceeded the rehabilitation unit of the hospital which
amount that was identified in the FY methodologies for the 7 hospitals that
is a distinct part, is the reasonable costs have participated in the demonstration
IPPS 2007 final rule as the budget of providing such services for
neutrality offset for FY 2007. since its inception and that, as
2. Section 410A of the MMA as discharges occurring in the first cost explained previously, we consider to be
Amended by Section 3123 of the Public reporting period beginning on or after continuing to participate in the
Law 111–148 and as Further Amended the first day of the 5-year extension demonstration (‘‘originally participating
by Section 10313 of Public Law 111– period. (Section 410A(g)(4)(b) of MMA hospitals’’), and the 3 hospitals that are
148. as added by section 3123(a) of Public currently participating in the
Section 410Aof the MMA as amended Law 111–148 and as amended by demonstration that were among the 4
by section 3123 of Public Law 111–148, section 10313 of Public Law 111–148.) hospitals that joined the demonstration
and as further amended by section For discharges occurring in a in 2008. Different methods are used
10313 of Public Law 111–148, affects subsequent cost reporting period paid because fiscal intermediaries’ most
this demonstration in several ways. under the demonstration, the formula in recent final settlements of cost reports
First, the Secretary is required to section 410A(b)(1)(B) of MMA as are for periods beginning in FY 2006 for
conduct the demonstration for an amended would apply. In addition, the ‘‘originally participating hospitals,’’
additional 5-year period that begins on various other technical and conforming whereas we are relying on available
the date immediately following the last changes were made to section 410A of submitted documentation for the
day of the initial 5-year period under MMA, as amended by section 3123(a) of hospitals that began participation in the
section 410A(a)(5) of the MMA as Public Law 111–148 and as amended by demonstration in 2008. Because the
amended. (Section 410A(g)(1) of the section 10313 of Public Law 111–148. hospitals that began the demonstration
MMA as added by section 3123(a) of in 2008 have no settled cost reports for
the demonstration, we are using as estimated costs in FY 2011 under the explanation). However, we note that the
submitted cost documents. The budget methodology set forth in Public Law portion of the FY 2010 budget neutrality
neutrality analysis is based on the 108–173 as amended by Public Law adjustment to the national IPPS rates
assumption that all 10 of these hospitals 111–148 and the estimated amount the that was included in the FY 2010 IPPS
will continue the demonstration under hospitals would have been paid under final rule that accounted for the
the 5-year extension period provided by the IPPS in FY 2011. With the exception estimated costs of the demonstration in
the Affordable Care Act. We believe that of the Indian Health Service provider, FY 2010 did not take into account costs
this assumption is warranted since they the estimated costs under the of the demonstration for those hospitals
have participated in the initial 5 year demonstration are derived from data on beyond the anticipated end date of their
demonstration period so far, which we the hospitals’ cost reports. The cost initial demonstration period. (For
believe indicates that they will choose reports state the dollar amount example, for a hospital whose cost
to continue to avail themselves of the attributable to Medicare inpatient costs report ended in June 30, 2010, we
levels of reimbursement under the for the cost report year. They also state counted only nine months for the
demonstration. the dollar amount that would be paid if budget neutrality adjustment for the FY
The estimate of the portion of the the inpatient prospective payment 2010 IPPS/LTCH PPS final rule. Under
proposed budget neutrality adjustment system were in effect. For each hospital, this proposal, we would also adjust the
that accounts for the estimated costs of the difference between these two national IPPS rates to account for the
the demonstration in FY 2011 for the 7 amounts is updated according to the estimated costs for this hospital for the
‘‘originally participating hospitals’’ is market basket update factors for remaining three months of FY 2010.) We
based on data from their second year inpatient hospital costs reported by the are proposing to include a component in
cost reports—that is, cost reporting CMS Office of the Actuary for the years the FY 2011 budget neutrality
periods beginning in FY 2006. We between the cost report year and FY adjustment to account for the estimated
propose to use these cost reports 2011. In accordance with guidance from costs of the demonstration in FY 2010
because they are the most recent the Office of the Actuary, we also that were not accounted for in the FY
complete cost reports and thus we assume a 2 percent annual volume 2010 IPPS/RY 2010 LTCH PPS final rule
increase. In the FY 2011 final rule, we
believe they enable us to estimate FY for the seven ‘‘originally participating
may revise this estimate if updated cost
2011 costs as accurately as possible. In hospitals’’ because we calculated the FY
report data becomes available.
addition, we estimate the cost of the 2010 cost estimate for that year’s final
demonstration in FY 2011 for 2 of the b. Portion of the Proposed FY 2011 rule assuming that the demonstration
4 hospitals that joined the Budget Neutrality Adjustment That would end before the end of that fiscal
demonstration in 2008 based on data Accounts for Estimated FY 2010 Costs year for those hospitals. We are
from each of their cost reporting periods of the Demonstration That Were Not proposing the following methodology to
beginning January 1, 2008. Similarly, we Accounted for in the FY 2010 IPPS account for such estimated costs: Step
propose to use these cost reports Final Rule for the Seven ‘‘Originally one, for each of the seven ‘‘originally
because they are the most recent cost Participating Hospitals’’ participating hospitals,’’ we divide the
reports and thus we believe they enable As explained above, subsection number of months that were not
us to estimate FY 2011 costs for these (g)(4)(A) of 410A of the MMA as added included in the estimate of the FY 2010
2 hospitals as accurately as possible. by section 3123(a) of Public Law 111– demonstration costs included in the
Since one of the 4 hospitals that began 148 as amended by section 10313 of final IPPS FY 2010 rule by 12. This step
in 2008 has withdrawn, there is one Public Law 111–148, provided for the is necessary to determine for each of the
hospital remaining among those that continued participation of rural seven ‘‘originally participating
began in that year. The remaining community hospitals that were hospitals’’ the fraction of FY 2010 for
hospital of the 4 that began in 2008 is participating in the demonstration as of which the estimate of the FY 2010
an Indian Health Service provider. the last day of the initial 5-year demonstration was not included. Step
Historically, the hospital has not filed [demonstration] period. One of the two, for each of the seven ‘‘originally
standard Medicare cost reports. In order effects of this extension is that the seven participating hospitals,’’ the percentage
to estimate its costs, we are proposing ‘‘originally participating hospitals’’ that results in step one is multiplied by
to use an analysis of Medicare inpatient (those hospitals that have participated the estimate of the cost attributable to
costs and payments submitted by the in the demonstration since its inception the demonstration in FY 2010 for the
hospital for the cost reporting period and that continue to participate in the hospital. The estimate for the fraction of
October 1, 2005 through September 30, demonstration or were participating in the hospital’s cost for fiscal year 2010
2006. We are proposing to use this data the demonstration as of the last day of not included in the estimate in the FY
because it represents a detailed analysis its initial 5-year demonstration period 2010 IPPS rule is arrived at by
of the hospital’s cost-payment profile, (that, is the 2 rural community hospitals multiplying this fraction by the estimate
and we expect that such an account will that concluded their period of of costs for the entire year. The estimate
not change appreciably from year to performance in December 2009)) which of the costs of the demonstration for FY
year because it is a relatively small were scheduled to end their 2010 for the seven ‘‘originally
provider serving a limited population. participation in the demonstration participating’’ hospitals is derived from
When we add together the estimated before the conclusion of FY 2010 would data found in their cost reports for cost
costs of the demonstration in FY 2011 continue to participate for the report years beginning in FY 2006.
for the 7 ‘‘originally participating remainder of FY 2010 and beyond as These cost reports show dollar amounts
hospitals’’ that have participated in the applicable. Section II.F.3. of the for costs for Medicare inpatient services
demonstration since its inception and preamble, we are assuming for purposes (that is, the Medicare payment amount
the 3 hospitals selected in 2008 that are of our budget neutrality analysis in in that cost report year for Medicare
still participating, the total estimated section II. F.3.a. of the preamble that the inpatient services) and the dollar
cost is $20,930,484. This estimated seven ‘‘originally participating amount that would have been paid
amount reflects the difference between hospitals’’ are also currently under the IPPS. Since these cost report
these 10 participating hospitals’ participating hospitals. See for our years all ended during FY 2007, this
difference, respective to each of the hospital derived from the estimate of the participating hospitals (which represent
seven ‘‘originally participating 10 currently participating hospitals’ the third year of the demonstration for
hospitals’’, is updated according to the costs attributable to the demonstration each of the then participating hospitals).
market basket updates for inpatient for FY 2011. Because the statute allows (We propose to use these settled cost
hospital costs reported by the CMS the potential for 20 additional hospitals reports, which represent the third year
Office of the Actuary for the years from for the demonstration, we are basing of the demonstration for each of the
FY 2008 through FY 2011. In this estimate on the assumption that 20 then participating hospitals because
accordance with guidance from the hospitals will join. Our experience they correspond most precisely to FY
Office of the Actuary, we also assume an analyzing the cost reports so far for 2007 and we therefore believe correctly
annual two percent volume increase. demonstration hospitals shows a wide represent FY 2007 inpatient costs for the
(This calculation is not necessary for the variation in costs among the hospitals. demonstration during that period).
hospitals that began participating in the Given the wide variation in cost profiles • Step Two: Subtract the amount that
demonstration in 2008 because the that might occur for additional was offset by the budget neutrality
portion of the FY 2010 budget neutrality hospitals, we believe that estimating the adjustment for FY 2007 ($9,197,870)
adjustment that accounts for estimated total demonstration cost for FY 2011 for from the costs of the demonstration in
FY 2010 demonstration costs in the FY 20 additional hospitals from the average FY 2007 as calculated in step one; and
2010 IPPS/RY 2010 LTCH PPS final rule annual cost of the currently existing • Step Three: The result of step two
incorporates a cost estimate for each of hospitals yields the most accurate is a dollar amount, for which we would
these hospitals based on the entirety of prediction because it is reflective of the calculate a factor that would offset such
the Federal fiscal year.) The estimate of historical trend of participant behavior amounts and would be incorporated
additional costs attributable to the under the demonstration and should into the proposed overall budget
demonstration in FY 2010 for the 7 give an accurate as possible prediction neutrality adjustment to national IPPS
‘‘originally participating hospitals’’ that of future participant behavior. We rates for FY 2011. This specific
were not accounted for in the FY 2010 believe that, although there is variation component to the overall budget
final rule is $6,488,221. Similar to in costs, formulating an estimate from neutrality adjustment for FY 2011
above, this estimate is based on the the average costs of as many as 10 would account for the difference
assumption that the seven ‘‘originally hospitals gives as good as possible a between the costs of the demonstration
participating hospitals’’ will choose to prediction of what the demonstration in FY 2007 and the amount of the
continue participating in the costs for each of 20 additional hospitals. budget neutrality adjustment published
demonstration past the end of their We are estimating the average cost for in the FY 2007 IPPS final rule and
original 5-year demonstration periods. each of the 20 additional hospitals not therefore ensures that the demonstration
We believe that this assumption is valid, on a range of costs, but on an estimate is budget neutral for FY 2007.
because they are participating in the of this average cost per hospital, Because the settlement process for the
demonstration to this date, or, for the obtained by dividing $20,930,484, the demonstration hospitals’ third year cost
case of the two hospitals that ended estimated cost amount for FY 2011 reports, that is, cost reporting periods
active participation in the identified for the 10 participating starting in FY 2007, has experienced a
demonstration program in December hospitals in subsection (a), by 10. The delay, for this FY 2011 IPPS proposed
2009, they were participating as of the estimate for costs attributable to the rule, we are unable to state the costs of
last day of their initial 5-year period. demonstration for 20 additional the demonstration corresponding to FY
hospitals in FY 2011 is $41,860,968. 2007 and as a result are unable to
c. Portion of the Proposed FY 2011 propose the specific numeric
Budget Neutrality Adjustment That d. Portion of the Proposed FY 2011 adjustment representing this offsetting
Accounts for Estimated FY 2011 Costs Budget Neutrality Adjustment That process that would be applied to the
for Hospitals Newly Selected To Offsets the Amount by Which the Costs national IPPS rates. However, we expect
Participate in the Demonstration of the Demonstration in FY 2007 the cost reports beginning in FY 2007
Section 410A(g)(3) of MMA, as added Exceeded the Amount That Was for hospitals that participated during FY
by section 3123 of Public Law 111–148, Identified in the Final FY 2007 IPPS 2007 to be settled before the FY 2011
and as amended by section 10313 of Final Rule as the Budget Neutrality IPPS/LTCH final rule is published.
Public Law 111–148, provides that Offset for FY 2007 Therefore, for the FY 2011 IPPS/LTCH
‘‘[n]otwithstanding subsection (a)(4), In addition, in order to ensure that the PPS final rule, we expect to be able to
during the 5-year extension period, not demonstration in FY 2007 was budget calculate the amount by which the costs
more than 30 rural community hospitals neutral, we are proposing to incorporate corresponding to FY 2007 exceeded the
may participate in the demonstration a component into the budget neutrality amount offset by the budget neutrality
program under this section.’’ adjustment factor to the FY 2011 adjustment for FY 2007. Consequently,
Consequently, up to 20 additional national IPPS rates, which would offset by adding this proposed amount to the
hospitals may be added to the the amount by which the costs of the above proposed amounts estimated in
demonstration (30 hospitals minus the demonstration program as indicated by subsections (a) through (c) of section
10 currently participating hospitals). In settled cost reports beginning in FY II.F.3.a. of the preamble, we arrive at a
order to ensure budget neutrality for 20 2007 for hospitals participating in the proposed amount, from which we
new participating hospitals, we are demonstration during FY 2007 exceeded would be able to calculate the proposed
proposing to include a component in the amount that was identified in the FY budget neutrality factor which we
the budget neutrality adjustment factor 2007 IPPS final rule as the budget would use to adjust the FY 2011
to the FY 2011 national IPPS rates to neutrality offset for FY 2007. national IPPS rates in the FY 2011 IPPS/
account for the estimated FY 2011 costs Specifically, we are proposing the LTCH PPS final rule.
of those new hospitals. For purposes of following methodology: For this supplemental proposed FY
estimating the FY 2011 costs of the • Step One: Calculate the FY 2007 2011/LTCH PPS rule, the estimated
demonstration for 20 new hospitals, we costs of the demonstration program amount for the adjustment to the
are proposing to estimate such costs according to the settled cost reports that national IPPS rates is the sum of the
from the average annual cost per began in FY 2007 for the then amounts specified in subsections (a)
through (c) above or $69,279,673 and services furnished by a critical access percent of’’ before ‘‘the reasonable costs.’’
the amount resulting from the proposed hospital (CAH). Section 403(d) of Public As such, section 3128(a) increases
method in subsection (d) that we expect Law 106–113 (BBRA) amended section payment for outpatient facility services
to be calculated in the FY 2011 IPPS/ 1834(g) of the Act to provide for two under the optional method and payment
LTCHPPS final rule. Subsections (a) methods of payment for outpatient for ambulance services furnished by a
through (c) state dollar amounts, which services furnished by a CAH. CAH or an entity owned and operated
represent estimated costs attributable to Specifically, section 1834(g)(1) of the by a CAH, to 101 percent of reasonable
the demonstration for the respective Act, as amended by Public Law 106– costs. Section 3128(b) states that the
component of the overall estimated 113, provided that the amount of amendments made under section
calculation of the budget neutrality payment for outpatient services 3128(a) shall take effect as if they were
factor for FY 2011. This estimated furnished by a CAH is equal to the included in the enactment of section
amount is based on the specific reasonable costs of the CAH in 405(a) of Public Law 108–173. Section
assumptions identified, as well as from providing such services (the physician 405(a) of Public Law 108–173, which
data sources that are used because they or other practitioner providing the provided that, in general, inpatient,
represent either the most recently professional service receives payment outpatient, and covered SNF services
finalized or, if as submitted, the most under the Medicare Physician Fee provided by a CAH would be
recent available cost reports. The overall Schedule). In the alternative, the CAH reimbursed at 101 percent of reasonable
budget neutrality change in the final FY may make an election, under section cost, was applicable to payments for
2011 IPPS/LTCH PPS rule, if any of 1834(g)(2) of the Act, to receive amounts services furnished during cost reporting
these factors were to change. that are equal to ‘‘the reasonable costs’’ periods beginning on or after January 1,
of the CAH for facility services plus, 2004.
G. Proposed Changes to Payment Rates
with respect to the professional services, In order to implement section 3128 of
for IPPS for Capital-Related Costs for FY
the amount otherwise paid for Public Law 111–148, we are proposing
2011
professional services under Medicare, to amend the regulations at
Although the provisions of Public less the applicable Medicare deductible § 413.70(b)(3)(ii)(A) to state that,
Law 111–148, do not directly affect the and coinsurance amount. The election effective for cost reporting periods
payment rates and policies for the IPPS made under section 1834(g)(2) of the beginning on or after January 1, 2004,
for capital-related costs, in section II. of Act is sometimes referred to as ‘‘method under the optional method, payment for
the Addendum of this supplemental II’’ or ‘‘the optional method.’’ facility services will be made at 101
proposed rule we are proposing the Throughout this section of this percent of reasonable cost. Accordingly,
capital IPPS standard Federal rates for preamble, we refer to this election as regardless of whether a physician/
FY 2011. This is necessary because the ‘‘the optional method.’’ Section 202 of practitioner has reassigned his/her
wage index changes required by the Public Law 106–554 (BIPA) amended billing rights to the CAH, payment for
provisions of Public Law 111–148 section 1834(g)(2)(B) of the Act to CAH facility services will be made at
(discussed above in section II.A. of this increase the payment for professional 101 percent of reasonable costs. In
preamble) affect the proposed budget services under the optional method to addition, we are proposing to
neutrality adjustment factor for changes 115 percent of the amount otherwise implement the change in payment for
in DRG classifications and weights and paid for professional services under ambulance services provided by section
the geographic adjustment factor (GAF) Medicare. In addition, section 405(a)(1) 3128 of Public Law 111–148 by
since the GAF values are derived from of Public Law 108–173 (MMA) amended amending the regulations at
the wage index values (see § 412.316(a)). section 1834(g)(l) of the Act by inserting § 413.70(b)(5)(i) to state that effective for
In addition, the provisions of Public the phrase ‘‘equal to 101 percent of’’ cost reporting periods beginning on or
Law 111–148, (discussed above in this before the phrase ‘‘the reasonable costs.’’ after January 1, 2004, payment for
preamble) also necessitate a revision to However, the MMA did not make a ambulance services furnished by a CAH
the proposed outlier payment corresponding change to section or an entity that is owned and operated
adjustment factor since a single set of 1834(g)(2)(A) of the Act regarding the by a CAH is 101 percent of the
thresholds is used to identify outlier amount of payment for facility services reasonable costs of the CAH or the
cases for both inpatient operating and under the optional method. entity in furnishing those services, but
inpatient capital-related payments (see Section 1834(l)(8), as added by
only if the CAH or the entity is the only
§ 412.312(c)). The outlier thresholds are section 205 of Public Law 106–554,
provider or supplier of ambulance
set so that operating outlier payments establishes the payment methodology
services located within a 35-mile drive
are projected to be 5.1 percent of total for ambulance services furnished by a
of the CAH or the entity. We note that
operating IPPS DRG payments. Section CAH or by an entity that is owned and
we do not believe these proposals will
412.308(c)(2) provides that the standard operated by a CAH. This provision
result in additional payments to CAHs
Federal rate for inpatient capital-related states that payment is made at ‘‘the
for prior periods because we believe in
costs be reduced by an adjustment factor reasonable costs incurred in furnishing
fact that CMS has paid CAHs for these
equal to the estimated proportion of ambulance services if such services are
furnished by a critical access hospital services at 101 percent of reasonable
capital-related outlier payments to total
(as defined in section 1861(mm)(1) of costs during these prior periods.
inpatient capital-related PPS payments.
The proposed capital IPPS standard the Act), or by an entity that is owned I. Extension of Certain Payment Rules
Federal rates for FY 2011 are discussed and operated by a critical access for Long-Term Care Hospital Services
in section II. of the Addendum of this hospital, but only if the critical access and Moratorium on the Establishment of
supplemental proposed rule. hospital or entity is the only provider or Certain Hospitals and Facilities
supplier of ambulance services that is
H. Payment for Critical Access Hospital located within a 35-mile drive of such 1. Background
Outpatient Services and Ambulance critical access hospital.’’ On December 29, 2007 the Medicare,
Services Section 3128(a) of Public Law 111– Medicaid, and SCHIP Extension Act of
Section 1834(g) of the Act establishes 148 amended sections 1834(g)(2)(A) and 2007 (MMSEA) (Pub. L. 110–173) was
the payment rules for outpatient 1834(l)(8) of the Act by inserting ‘‘101 enacted. Section 114 of MMSEA,
entitled ‘‘Long-term care hospitals,’’ Section 114(c) and (d) of the MMSEA determined under § 412.529(d)(4).
made a number of changes affecting as amended by section 4302 of ARRA as Under that SSO payment formula, cases
payments to LTCHs for inpatient amended by section 3106 of the Public where the covered LOS is greater than
services. In May 6, 2008 and May 22, Law 111–148 and as further amended by the ‘‘IPPS comparable threshold,’’ the
2008 Federal Register (73 FR 24871 and section 10312 of Public Law 111–148 fourth payment option would be
73 FR 29699, respectively), we issued provides for a 2-year extension to replaced with the blend of the 120
two interim final rules (IFCs), payment policies relating to long-term percent of the LTC–DRG specific per
implementing provisions of section 114 care hospitals (LTCHs) and LTCH diem amount and an amount
of the MMSEA. The May 6, 2008 IFC satellite facilities. Specifically, these comparable to the IPPS per diem
implemented section 114(c)(3) of the provisions affect payment adjustments amount determined under
MMSEA which required a 3-year delay for short stay outliers (SSOs), the one- § 412.529(d)(4). (See (72 FR 26905
in the application of certain provisions time prospective adjustment to the through 26918).)
of the payment adjustment for short-stay standard Federal rate, the 25 percent Section 114(c)(3) of MMSEA
outliers (SSOs), and section 114(e)(4)(1) payment threshold policy, and the established a 3-year delay of the
and (2) which specified revisions to the moratorium on the establishment of new application of the methodology at
RY 2008 standard Federal rate for LTCHs and LTCH satellite facilities. In § 412.529(c)(3)(i) that was added in the
LTCHs. The May 22, 2008 IFC this supplementary proposed rule for RY 2008 LTCH PPS final rule. It
implemented section 114(c)(1) and the LTCH PPS, we are implementing the specified that the Secretary shall not
(c)(2), providing for a 3-year delay in the policies mandated by the amendments apply the amendments finalized on May
application of the 25 percent threshold to section 114(c) and (d) of the MMSEA 11, 2007 (72 FR 26992) made to the
payment adjustment for discharges from as amended by section 4302 of the short-stay outlier payment provision for
LTCHs and LTCH satellite facilities that ARRA and as further amended by long-term care hospitals contained in
were admitted from certain referring section 3106 of Public Law 111–148, § 412.529(c)(3)(i) or any similar
hospitals in excess of various percentage and section 10312 of Public Law 111– provisions for the 3-year period
thresholds. The May 22, 2008 IFC also 148, and are proposing to revise the beginning on the date of enactment of
implemented section 114(d) of the regulations accordingly to incorporate this Act [December 29, 2007]. Section
MMSEA relating to the 3-year those changes. In the sections below, we 114(c)((3) of the MMSEA as amended by
moratorium on the establishment of new will briefly describe each of these section 3106(a) of the Public Law 111–
LTCHs and LTCH satellite facilities and policies and propose to incorporate into 148, and as amended by section
on increases in beds in existing LTCHs the regulations their 2-year extension. 10312(a) of Public Law 111–148, adds
and LTCH satellite facilities. an additional 2 years to the 3-year delay
2. Short-Stay Outlier Policy of the application of § 412.529(c)(3)(i).
In addition, we revised regulations at
In the FY 2003 LTCH PPS final rule Specifically, these provisions together
§ 412.523(d)(3) implementing section
(67 FR 55995), we established a special result in the phrase ‘‘3-year period’’
114(c)(4) of MMSEA. Our regulations
payment policy for SSO cases at being replaced with the phrase ‘‘5-year
provided that for a 3-year period
§ 412.529. SSO cases are cases with a period’’ each place it appears in 114(c)
beginning on December 29, 2007, the
covered LOS that is less than or equal of MMSEA as amended by the ARRA.
Secretary shall not make the one-time
to five-sixths of the geometric average Thus, the reference to the 3-year period
prospective adjustment to the LTCH in delay of application of
LOS for each LTC–DRG. When we
PPS payment rates earlier than § 412.529(c)(3)(i) is changed to be 5-year
established the SSO policy, we
December 29, 2010 and later than period of delay. Consequently, the
explained that ‘‘[a] short stay outlier
December 29, 2012 (73 FR 26804). Secretary will not apply for the 5-year
case may occur when a beneficiary
Section 4302 of the American Recovery period beginning on the date of
receives less than the full course of
and Reinvestment Act of 2009 (ARRA) enactment of MMSEA (December 29,
treatment at the LTCH before being
( Pub. L. 111–5) enacted on February 17, 2007) the policy at § 412.529(c)(3)(i). We
discharged’’ (67 FR 55995).
2009, included several amendments to We later refined the SSO policy in the note that this provision of the law is
section 114(c) and (d) of the MMSEA. RY 2008 LTCH PPS final rule. self-implementing and in this
The provisions of section 4302 of the Specifically, the RY 2008 LTCH PPS supplementary proposed rule, we are
ARRA were implemented in an IFC final rule added an additional payment proposing to incorporate existing law
which was published with the FY 2010 methodology at § 412.529(c)(3)(i) for a regarding the additional 2 year delay
IPPS/RY 2010 LTCH PPS final rule (74 SSO case with a covered length of stay into the regulations at § 412.529(c)(3)(i)
FR 43990 through 43994). In that same (LOS) that is less than or equal to one to reflect this policy change.
final rule, we responded to comments standard deviation from the geometric
and finalized the MMSEA provisions in 3. The One-time Adjustment of the
ALOS of the same DRG under the IPPS Standard Federal Rate
the May 6, 2008 and the May 22, 2008 as the LTC–DRG to which the case had
IFCs that had not otherwise modified by been assigned (referred to as the ‘‘IPPS In the August 30, 2002 LTCH PPS
the ARRA. We intend to finalize the comparable threshold’’). The Medicare final rule (67 FR 56027), we provided in
ARRA provisions and respond to payment for that SSO case where the § 412.523(d)(3) of the regulations, for the
comments on the ARRA IFC, in the FY covered LOS is less than or equal to the possibility of making a one-time
2011 IPPS/LTCH PPS final rule. ‘‘IPPS comparable threshold’’ would be prospective adjustment to the LTCH
The discussion in section XX pertain based on the least of the following: PPS rates by July 1, 2008, so that the
to the specific changes to the LTCH PPS • 100 percent of the estimated cost of effect of any significant difference
policies that are mandated by the case. between actual payments and estimated
amendments to section 114(c) and (d) of • 120 percent of the LTC–DRG payments for the first year of the LTCH
the MMSEA, as amended by section specific per diem amount multiplied by PPS would not be perpetuated in the
4302 of the ARRA and further amended the covered LOS of the particular case. LTCH PPS rates for future years.
by section 3106 of Public Law 111–148 • The full LTC–DRG. Later, section 114(c)(4) of MMSEA
as amended by section 10312 of Public ++ An amount comparable to the was enacted which provided a 3-year
Law 111–148. hospital IPPS per diem amount delay in the application of
§ 412.523(d)(3). Specifically, section the patient thresholds outlined in that under section 114(c)(2)(A) of
114(c)(4) of MMSEA provides that the section 114(c)(2) of MMSEA as they MMSEA the time period during which
’’Secretary shall not, for the 3-year apply to an ‘‘applicable’’ long-term care the increased percentage thresholds
period beginning on the date of the hospital or satellite facility as set forth apply to an ‘‘applicable long-term care
enactment of this Act, make the one in section 114(c)(2)(A) and (B) of hospital or satellite facility’’ which is
time prospective adjustment to long- MMSEA as amended. Specifically, located in a rural area or which is co-
term care hospital prospective payment § 3106(a) of Public Law 111–148 located with an urban single or MSA-
rates provided for in section together with section 10312 of Public dominant hospital, under 42 CFR
412.523(d)(3) of title 42, Code of Federal Law 111–148, results in the substituting 412.534(d) and (e) is increased from a
Regulations, or any similar provision.’’ of the phrase ‘‘5-year period’’ for the 3-year period to a 5-year period. Thus,
The effect of this provision was that no phrase ‘‘3-year period’’ each time it for the 5-year period beginning on or
one-time budget neutrality adjustment appears in section 114(c) of MMSEA as after October 1, 2007, payment to an
could be made earlier than December amended by ARRA. This provision of ‘‘applicable LTCH hospital or LTCH
29, 2010. (Following the enactment of the law is self-implementing. satellite that is located in a rural area or
MMSEA, we modified the regulations at With respect to section 114(c)(1) of is co-located with a MSA-dominant
§ 412.523(d)(3) to capture the 3-year MMSEA as amended by ARRA (Delay in hospital or urban single hospital under
delay required by section Application of [the] 25 Percent Patient paragraphs (d) and (e), of 42 CFR
114(c)(4)MMSEA and our proposal to Threshold Payment Adjustment), 412.534, shall not be subject to any
conform our regulation to more section 3106(a) of the Public Law 111– payment adjustment under such section
accurately reflect the purpose of 148 and as further amended by section if no more than 75 percent of the
providing for a possible one-time budget 10312(a) of Public Law 111–148 results hospital’s Medicare discharges (other
neutrality adjustment.) (See 73 FR in an additional 2-year delay being than discharges described in paragraph
26800 through 26805). Now, section added to the existing 3-year delay in (d)(2) or (e)(3) of such section are
3106(a) of Public Law 111–148, together application of the 25 percent threshold admitted from a co-located hospital. We
with section 10312 of Public Law 111– amount under § 412.534 and § 412.536. are proposing to incorporate into our
148 results in, an additional 2 years Specifically, under § 114(c)(1)(A) and regulations at 412.534(d)(1) through
being added to the existing 3-year delay (B) of MMSEA as amended by the ARRA (d)(3) and (e)(1) through (e)(3); the
of § 412.523(d)(3). Specifically, these and the Affordable Care Act, the above-described self-implementing the
amendments together result in the Secretary shall not apply, for cost Affordable Care Act changes by
phrase ‘‘3-year period’’ being replaced reporting periods beginning on or after extending the sunsetting of the
with the phrase ‘‘5-year period’’ each July 1, 2007 for a 5-year period—(A) threshold percentage increase an
place it appears in 114(c) of MMSEA as § 412.536 of title 42, Code of Federal additional 2 years, to cost reporting
amended by the ARRA. Thus, the Regulations, or any similar provision, to periods beginning on or after October 1,
reference to the 3-year period in delay free standing long-term care hospitals or 2012, as applicable, July 1, 2007 for a
of application § 412.523(d)(3) is changed to a long-term care hospital, or satellite satellite facility described in 42 CFR
to be a 5-year period of delay. facility, that as of December 29, 2007, 412.22(h)(3)(i).)
Consequently, the Secretary shall not was co-located with an entity that is a
apply for the 5-year period beginning on provider-based, off-campus location of a In addition, the change in the
the date of the enactment of MMSEA subsection (d) hospital which did not effective date change required in section
(December 29, 2007) the one-time provide services payable under section 114(c)(2)(C) of MMSEA, as amended by
prospective adjustment provided for in 1886(d) of the Act at the off-campus ARRA and the Affordable Care Act, is
§ 412.523(d)(3). We note that this location; and (B) such section or that the time period during which the
provision of the law is self- § 412.534 of title 42, Code of Federal increased percentage threshold
implementing and we are proposing to Regulations, or any similar provisions, applicable to an ‘‘applicable’’ LTCH or
incorporate existing law regarding this to a long-term care hospital identified satellite, as defined in section
additional 2-year delay of the one-time by the amendment made by section 114(c)(2)(ii) of the MMSEA as amended
budget neutrality adjustment into the 4417(a) of the BBA. In order to by section 4302(a)(2)(A) of the ARRA,
regulations at § 412.523(d)(3) to reflect incorporate existing law requiring that which is co-located with another
this policy. Thus, we are proposing to application of the above provisions will hospital is increased from a 3-year
revise § 412.523(d)(3) to specify that the not be applied prior to cost reporting period to a 5-year period. Thus, for the
Secretary is precluded from making the periods beginning on July 1, 2012, we 5-year period beginning on or after
one-time adjustment until December 29, are proposing to modify our regulations October 1, 2007, payment to an
2012. at § 412.534(h)(4) and § 412.536(a)(1). ‘‘applicable’’ LTCH or LTCH satellite
With respect to section 114(c)(2) of facility that is co-located with another
4. Modification of Certain Payment MMSEA as amended by ARRA and hospital shall not be subject to any
Adjustments to Certain LTCHs and section 3106(a) of Public Law 111–148 payment adjustment under § 412.534 if
LTCH Satellite Discharges and as amended by section 10312 of no more than 50 percent of the
The timeframes outlined in section Public Law 111–148 the effective date hospital’s Medicare discharges (other
114(c)(1) and (2) of MMSEA are provided in section 114(c)(2)(C) of than discharges described in paragraph
amended by ARRA and section 3106(a) MMSEA is amended such that the (c)(3) of such section) are admitted from
of Public Law 111–148, and as further provision specifies that subparagraphs a co-located hospital. We are proposing
amended by section 10312(a) of Public A and B [of section 114(c)(2)] shall to incorporate this self-implementing
Law 111–148 are increased from 3 years apply to cost reporting periods Affordable Care Act change into our
to 5 years, thereby extending for an beginning on or after October 1, 2007 (or regulations at § 412.534(c)(1), (2) and (3)
additional 2 years the delay in July 1, 2007, in the case of a satellite by extending the sunsetting of the
application of the 25 percent patient facility described in § 412.22(h)(3)(i) of threshold percentage increase an
threshold amount under § 412.534 and title 42, Code of Federal Regulations) for additional 2 years, to cost reporting
§ 412.536 for certain LTCHS and LTCH a 5-year period.) The effect of this self- periods beginning on or after October 1,
satellite facilities and the increases in implementing effective date change is 2012 or July 1, 2012, as applicable.
5. Moratorium on the Increase in The moratorium on an increase of J. Long-Term Care Hospital Proposed
Number of Beds in Existing Long-Term beds is subject to the exception at Market Basket Update and Other
Care Hospitals or Long-Term Care section 114(d)(3) of MMSEA. Proposed Changes
Hospital Satellite Facilities Specifically, section 114(d)(3) of the 1. Background
Section 114(d) of MMSEA provides MMSEA unamended stated that the
moratorium on an increase in beds shall In section VII. of the preamble of the
for a 3-year moratorium with two May 4, 2010 FY 2011 IPPS/LTCH PPS
distinct aspects, one for the not apply if an existing LTCH or LTCH
proposed rule, we discuss our proposed
establishment and classification of a satellite facility is ‘‘located in a State
changes to the payment rates, factors,
LTCH or a LTCH satellite facility, other where there is only one other long-term and specific policies under the LTCH
than an existing LTCH or facility, and care hospital; and requests an increase PPS for FY 2011. Although a number of
the other for the increase of hospital in beds following the closure or the the provisions of Public Law 111–148
beds in existing LTCHs and LTCH decrease in the number of beds of and Public Law 111–152 affect the
satellite facilities. Specifically, section another long-term care hospital in the LTCH PPS, due to the timing of the
114(d)(1)(A) of MMSEA provides that, State.’’ We implemented section 114(d) passage of the legislation, we were
during the 3-year period beginning on in the May 22, 2008 IFC (73 FR 29704 unable to address those provisions in
the date of enactment of this Act on through 29707); the FY 2010 IPPS/RY the May 4, 2010 FY 2011 IPPS/LTCH
December 29, 2007, the Secretary shall 2010 LTCH PPS final rule (74 FR 43985 PPS proposed rule. Therefore, the
impose a moratorium ‘‘subject to through 43990) and § 412.23(e)(5) proposed policies and payment rates in
paragraph (2), on the establishment and through (e)(7). that proposed rule do not reflect the
classification of a long-term care new legislation.
hospital or satellite facility, other than Section 4302 of the ARRA added
Below we address the provisions of
an existing long-term care hospital or another exception to the moratorium on
Public Law 111–148 and Public Law
facility.’’ Section 114(d)(1)(B) of increases in the number of beds at 111–152 that affect our proposed
MMSEA unamended, provides that, existing LTCHs and LTCH satellite policies and payment rates for FY 2011
during the 3-year period beginning of facilities. Specifically, section 4302(b) of under the LTCH PPS. In addition, we
the date of enactment of this Act, the the ARRA, added an additional have issued further instructions
Secretary shall impose a moratorium exception to the bed-increase implementing the provisions of Public
‘‘subject to paragraph (3), on an increase moratorium in an existing hospital or Law 111–148, as amended, that affect
of long-term care hospital beds in satellite facility ‘‘* * * if the hospital or the policies and payment rates for RY
existing long-term care hospitals or facility obtained a certificate of need for 2010 under the LTCH PPS. Specifically,
satellite facilities.’’ an increase in beds that is in a State for we have established revised RY 2010
Sections 114(d)(2) of MMSEA which such certificate of need is rates and factors elsewhere is this
unamended provides for exceptions to required and that was issued on or after Federal Register consistent with the
the moratorium on the development of April 1, 2005, and before December 29, provisions of sections 3401(c) and (p)
a LTCH or LTCH satellite facility, other 2007, * * *.’’ Accordingly, we revised and 10319(b) of Pub L. 111–148 and
than an existing LTCH or LTCH satellite our regulations at § 412.23(e)(7)(B) to section 1105(b) of Public Law 111–152,
facility, imposed by section 114(d)(1)(A) include this new exception to the as amended.
of MMSEA. (The definition of an moratorium on an increase in the
existing LTCH and satellite facility for 2. Revision of Certain Market Basket
number of beds in existence in an Updates as Required by Public Law
purposes of this policy is codified at
existing LTCH or LTCH satellite facility 111–148 and Public Law 111–152
§ 412.23(e)(7)(i).) Specifically, under
beyond those in existence on December Section 1886(m)(3)(A)(ii) of the Act,
this MMSEA provision, the moratorium,
is effective from December 29, 2007 29, 2007. (See 74 FR 43991 and 43992) as added by section 3401(c) of Public
through December 28, 2010 unless one Section 114(d) of MMSEA as Law 111–148, specifies that for each of
of the following three exceptions has amended by section 4302(b) of ARRA rate years 2010 through 2019, any
been met: and section 3106(b) of Public Law 111– annual update to the standard Federal
• The LTCH began ‘‘its qualifying 148 and section 10312(b) of Public Law rate shall be reduced by the other
period for payment as a long-term care 111–148 adds an additional 2 years to adjustment specified in new section
hospital under section 412.23(e) of title the 3-year moratorium on the 1886(m)(4) of the Act. Furthermore,
42, Code of Federal Regulations, on or development of new LTCHs and LTCH section 1886(m)(3)(A)(i) of the Act
before the date of enactment of this satellite facilities and on the increase in specifies that for rate year 2012 and
Act.’’ (See section 114(d)(2)(A) of the number of beds in existing LTCHs subsequent rate years, any annual
MMSEA). and LTCH satellites promulgated by update to the standard Federal rate shall
• The LTCH has a binding written MMSEA. Specifically, it raises the be reduced by the productivity
agreement with an outside, unrelated length of the moratorium specified in adjustment described in section
party for the actual construction, 1886(b)(3)(B)(xi)(II) of the Act. Section
section 114(d) of MMSEA as amended
renovation, lease, or demolition for a 1886(m)(3)(A)(ii) and sections
by ARRA from a 3-year period to a 5-
LTCH and has expended before 1886(m)(4)(A) and (B) of the Act, require
year period. Therefore, the moratorium a 0.25 percentage point reduction for
December 29, 2007 at least 10 percent of
the estimated cost of the project or, if will be in effect until December 28, rate year 2010 and a 0.50 percentage
2012. In this supplementary proposed
less, $2,500,000. (See section point reduction for rate year 2011.
114(d)(2)(B) of MMSEA). rule, we are proposing to revise Section 1886(m)(3)(B) of the Act
• The LTCH has obtained an § 412.23(e)(6)(i) and (e)(7)(ii) by provides that the application of
approved certificate of need in a State changing the ending date of the paragraph 3 of 1886(m) of the Act may
where one is required on or before moratorium provisions from December result in the annual update being less
December 29, 2007 (see section 28, 2010 to December 28, 2012 to reflect than zero for a rate year, and may result
114(d)(2)(C) of MMSEA). (See 73 FR these self-implementing Affordable Care in payment rates for a rate year being
29705 through 29707 and 74 FR 43985). Act changes. less than such payment rates for the
preceding rate year. Furthermore, 1886(m)(3) of the Act as added by percent. Furthermore, consistent with
section 3401(p) of Public Law 111–148 section 3401(c) of Public Law 111–148, section 3401(p) of Public Law 111–148,
specifies that the amendments made by and section 1886(m)(4) of the Act as we are also proposing to revise
section 3401(c) of Public Law 111–148 added by section 3401(c) of Public Law § 412.523(c)(3)(vi) to specify that with
shall not apply to discharges occurring 111–148 and amended by section respect to discharges occurring on or
before April 1, 2010. 10319(b) of Public Law 111–148, as after October 1, 2009 and before April
We note that in the May 4, 2010 FY further amended by section 1105(b) of 1, 2010, payments are based on the
2011 IPPS/LTCH PPS proposed rule, Public Law 111–152, as well as section standard Federal rate in § 412.523(c)(v)
since the annual update to the LTCH 3401(p) of the Public Law 111–148. updated by 2.0 percent (that is, a
PPS policies, rates and factors now Section 1886(m)(3)(A)(ii) of the Act standard Federal rate of $39,896.65 (see
occurs on October 1st, we proposed to provides for each of RYs 2010 through 74 FR 44022)). We note that the
adopt the term ‘‘fiscal year’’ (FY) rather 2019, the annual update to the standard provisions of the law that add sections
than ‘‘rate year’’ (RY) under the LTCH Federal rate is reduced by the ‘‘other 1886(m)(3) and (4) of the Act are self-
PPS beginning October 1, 2010 to adjustment’’ described in section implementing and in this supplemental
conform with the standard definition of 1886(m)(4) of the Act. Specifically, proposed rule, we are proposing to
the Federal fiscal year (October 1 sections 1886(m)(3)(A)(ii) and (4)(A) of incorporate existing law regarding the
through September 30) used by other the Act require a 0.25 percentage point 0.25 percentage point reduction to the
PPSs, such as the IPPS (see 75 FR 24046 reduction to the annual update to the annual update to the standard Federal
through 24027). Consequently, in that standard Federal rate for RY 2010. rate for RY 2010 (including the
proposed rule and in this supplemental Section 1886(m)(3)(A) of the Act on its application of the revised standard
proposed rule, for purposes of clarity, face explicitly provides for a revised Federal rate that reflects that 0.25
when discussing the annual update for annual update to the standard Federal percentage point reduction in making
the LTCH PPS, we employed ‘‘FY’’ rate beginning RY 2010, thus resulting payments for discharges on or after
rather than ‘‘RY’’ because it is our intent in a single revised RY 2010 standard April 1, 2010) into the regulations at
that the phrase ‘‘FY’’ be used Federal rate. Section 3401(p) of the § 412.529(c)(3)(vi) to reflect this
prospectively in all circumstances Public Law 111–148 provides that, required policy change.
dealing with the LTCH PPS. Similarly, notwithstanding the previous provisions
although the language of section 3401(c) 4. Proposed Market Basket Update for
of this section, the amendments made LTCHs for FY 2011
of Public Law 111–148 and section by subsections (a), (c) and (d) shall not
10319 of Public Law 111–148, and As discussed in section VII.C.2. of the
apply to discharges occurring before
section 1105(b) of Public Law 111–152 preamble of the May 4, 2010 FY 2011
April 1, 2010. When read in conjunction
refer to years 2010 and thereafter under IPPS/LTCH PPS proposed rule, we are
we believe section 1886(m)(3)(A) of the
the LTCH PPS as ‘‘rate year,’’ consistent proposing to continue to use the FY
Act and section 3401(p) of Public Law
with our proposal to change the 2002-based rehabilitation, psychiatric,
111–148 provide for a single revised RY
terminology used under the LTCH PPS long-term care (RPL) hospital market
2010 standard Federal rate; however, for
from ‘‘rate year’’ to ‘‘fiscal year,’’ for basket under the LTCH PPS for FY 2011.
payment purposes, discharges occurring
purposes of clarity, in this supplemental Also, in that proposed rule, we stated
on or after October 1, 2009 and before
proposed rule, when discussing the that at this time, the most recent
April 1, 2010, simply will not be based estimate of the increase in the proposed
annual update for the LTCH PPS, on the revised RY 2010 standard Federal
including the provisions of the LTCH PPS market basket (that is, the FY
rate. 2002-based RPL market basket) for FY
Affordable Care Act, we will continue to
employ ‘‘FY’’ rather than ‘‘RY’’ for 2011 As discussed in a separate notice 2011 is 2.4 percent. This increase is
and subsequent years because it is our published elsewhere in this Federal based on IHS Global Insight, Inc.’s first
intent that ‘‘FY’’ be used prospectively in Register, consistent with our historical quarter 2010 forecast, with historical
all circumstances dealing with the practice and the methodology used in data through the 2009 fourth quarter, of
LTCH PPS. the FY 2010 IPPS/RY 2010 final rule, we the FY 2002-based RPL market basket
establish an update to the LTCH PPS increase. Since publication of the May
3. Proposed Change to Reflect the standard Federal rate for RY 2010 of 4, 2010 FY 2011 IPPS/LTCH PPS
Market Basket Update for LTCHs for RY 1.74 percent. This annual update for RY proposed rule our estimate of the FY
2010 (§ 412.523(c)(vi)) 2010 is based on the full forecasted 2002-based RPL market basket for FY
In the FY 2010 IPPS/RY 2010 LTCH estimated increase in the LTCH PPS 2011 has not changed. Furthermore, as
PPS final rule appearing in the Federal market basket for RY 2010 of 2.5 also stated in the May 4, 2010 FY 2011
Register on August 27, 2009 (74 FR percent, adjusted by the 0.25 percentage IPPS/LTCH PPS proposed rule,
43754), we established policies, point reduction required by sections consistent with our historical practice of
payment rates and factors for 1886(m)(3)(A)(ii) and (4)(A) of the Act, using market basket estimates based on
determining payments under the LTCH and an adjustment to account for the the most recent available data, we
PPS for RY 2010 (October 1, 2009 increase in case-mix in a prior period propose that if more recent data are
through September 30, 2010). The (FY 2007) resulting from changes in available when we develop the final
provisions of the Affordable Care Act documentation and coding practices of rule, we would use such data, if
affect some of the policies, payment ¥0.5 percent. Therefore, in this appropriate.
rates and factors for determining supplemental proposed rule, under the Section 1886(m)(3)(A)(ii) of the Act as
payments under the LTCH PPS for RY authority of sections 1886(m)(3)(A)(ii) added by section 3401(c) of Public Law
2010 (some of which are discussed and (4)(A) of the Act, we are proposing 111–148 specifies that for each of RYs
elsewhere in this supplemental to amend § 412.523(c)(3)(vi) to specify 2010 through 2019, any annual update
proposed rule). In a separate notice that the standard Federal rate for the to the standard Federal rate shall be
published elsewhere in this Federal LTCH PPS rate year beginning October reduced by the other adjustment
Register, we establish revised RY 2010 1, 2009 and ending September 30, 2010, specified in new section 1886(m)(4) of
LTCH PPS rates and factors consistent is the standard Federal rate for the the Act. Furthermore, section
with the provisions of section previous rate year updated by 1.74 1886(m)(3)(A)(i) of the Act specifies that
for rate year 2012 and each subsequent established methodology for updating 2010 FY 2011 IPPS/LTCH PPS proposed
rate year, any annual update to the the annual update to the MS–LTC–DRG rule (75 FR 24042 through 24043), we
standard Federal rate shall be reduced classifications and relative weights in a are proposing to apply a budget
by the productivity adjustment budget neutral manner requires that neutrality adjustment factor of 0.987632
described in section 1866(b)(3)(B)(xi)(II) estimated aggregate LTCH PPS in determining the proposed FY 2011
of the Act. payments would be unaffected. That is, MS–LTC–DRG relative weights, which
For FY 2011, section 1886(m)(4)(B) of under the budget neutrality requirement was determined based on payments
the Act as added by section 3401(c) of estimated aggregate LTCH PPS simulations after using the proposed FY
Public Law 111–148, as amended by payments would be neither greater than 2011 standard Federal rate that reflects
section 10319 of Public Law 111–148 nor less than the estimated aggregate the reductions required by sections
and as further amended by section LTCH PPS payments that would have 1886(m)(3)(A)(ii) and (4)(A) and (B) of
1105(b) of Public Law 111–152, requires been made without the MS–LTC–DRG the Act (discussed above) and LTCH
a 0.50 percentage point reduction to the classification and relative weight claims from the December 2009 update
annual update to the standard Federal changes. of the FY 2009 MedPAR files (that is the
rate for rate year 2011. Consequently, As discussed in section VII.B.3.g. same data used in the May 4, 2010 FY
the proposed market basket update (step 7) of the preamble of the May 4, 2011 IPPS/LTCH PPS proposed rule).
under the LTCH PPS for FY 2011 is 1.9 2010 FY 2011 IPPS/LTCH PPS proposed Specifically, we determined the
percent (that is, the most recent estimate rule (75 FR 24042 through 24043), we proposed FY 2011 budget neutrality
of the LTCH PPS market basket of 2.4 proposed to use our established two- adjustment factor using the following
percent minus the 0.50 percentage step budget neutrality methodology. In three steps: (2.a.) we simulate estimated
points required in section 1886(m)(4)(B) the first step of our MS–LTC–DRG total LTCH PPS payments using the
of the Act. Again, we note that budget neutrality methodology, we normalized proposed relative weights
consistent with our historical practice of calculate and apply a normalization for FY 2011 and GROUPER Version 28.0
using market basket estimates based on factor to the proposed recalibrated (as described above); (2.b.) we simulate
the most recent available data, we relative weights to ensure that estimated estimated total LTCH PPS payments
propose that if more recent data are payments are not influenced by changes using the FY 2010 GROUPER (Version
available when we develop the final in the composition of case types or the 27.0) and the FY 2010 MS–LTC–DRG
rule, we would use such data, if changes to the classification system. relative weights shown in Table 11 of
appropriate, in determining the final That is, the normalization adjustment is the FY 2010 IPPS/RY 2010 LTCH PPS
market basket update under the LTCH intended to ensure that the recalibration final rule (74 FR 44183 through 44192);
PPS for FY 2011. (We note that in of the proposed MS–LTC–DRG relative and (2.c.) we calculate the ratio of these
section III.A. of the Addendum to this weights (that is, the process itself) estimated total LTCH PPS payments by
supplemental proposed rule, for FY neither increases nor decreases the dividing the estimated total LTCH PPS
2011, we are proposing to update the average case-mix index (CMI). The payments using the FY 2010 GROUPER
LTCH PPS standard Federal rate by normalization factor is calculated using (Version 27.0) and the FY 2010 MS–
¥0.59 percent. This proposed update the ratio average CMIs (that is, the LTC–DRG relative weights (determined
reflects proposed market basket update average MS–LTC–DRG relative weight) in step 2.b.) by the estimated total LTCH
under the LTCH PPS for FY 2011 (of 1.9 and is independent of the standard PPS payments using the proposed FY
percent as discussed above) and a Federal rate. (We refer readers to the FY 2011 GROUPER (Version 28.0) and the
proposed adjustment to account for the 2011 IPPS/LTCH PPS proposed rule for
normalized proposed MS–LTC–DRG
increase in case-mix in the prior periods additional details on the proposed
relative weights for FY 2011
that resulted from changes in calculation of the normalization factor
(determined in Step 2.a.).
documentation and coding practices applied used in determining the
rather than increases in patients’ proposed FY 2011 MS–LTC–DRG Therefore, under our established two-
severity of illness (discussed in section relative weights (75 FR 24042 through step budget neutrality methodology, in
VII.C.3. of the preamble of the May 4, 24043).) Therefore, this step was not determining the proposed FY 2011 MS–
2010 FY 2011 IPPS/LTCH PPS proposed revised for this supplemental proposed LTC–DRG relative weights, each
rule).) rule. However, in the second step of our normalized proposed relative weight
established two-step budget neutrality (determined as described in section
5. Proposed Medicare Severity Long- VII.C.3.g.(step 7) of the preamble of the
methodology (described in section
Term Care Diagnosis-Related Group May 4, 2010 FY 2011 IPPS/LTCH PPS
VII.B.3.g. (step 7) of the preamble of the
(MS–LTC–DRG) Relative Weights proposed rule) is multiplied by a budget
May 4, 2010 FY 2011 IPPS/LTCH PPS
As discussed above, the proposed proposed rule), for FY 2011 we neutrality factor of 0.987632 in the
LTCH PPS policies and payment rates in proposed to determine a budget second step of the budget neutrality
the May 4, 2010 FY 2011 IPPS/LTCH neutrality adjustment factor based on methodology to determine the proposed
PPS proposed rule do not reflect the simulating estimated total LTCH PPS budget neutral FY 2011. (We note that
provisions of the Affordable Care Act. payments. Consequently, revising the in determining the proposed FY 2011
The revised proposed standard Federal standard Federal rate to reflect the budget neutral MS–LTC–DRG relative
rate for FY 2011 that incorporates the provisions of newly added sections weights for this supplemental proposed
‘‘other adjustment’’ required in section 1886(m)(3)(A)(ii) and (4) of the Act rule, with the exception of the proposed
1886(m)(3)(A)(ii) as amended and would impact the estimated aggregated budget neutrality adjustment factor of
described in section 1886(m)(4) as LTCH PPS payments upon which we 0.987632 discussed above, we used the
amended is discussed in section III.A. of determine the proposed budget proposed methodology as presented in
the Addendum of this supplemental neutrality factor applied in determining the May 4, 2010 FY 2011 IPPS/LTCH
proposed rule. This revision to the the proposed FY 2011 MS–LTC–DRG PPS proposed rule (75 FR 24042
proposed standard Federal rate for FY relative weights. through 24043).) Consistent with our
2011 requires us to revise the proposed For this supplemental proposed rule, historical policy of using the best
relative weights for the MS–LTC–DRGs consistent with the proposed available data, we are proposing to use
for FY 2011. This is the case since our methodology described in the May 4, the most recent available data for
determining the budget neutrality 111–152, the policies and payment rates List of Subjects
adjustment factor in the final rule. outlined in the proposed rule did not
42 CFR Part 412
Accordingly, in determining the reflect the changes made by either law
proposed FY 2011 MS–LTC–DRG to the IPPS and LTCH PPS. This Administrative practice and
relative weights in Table 11 in the supplemental proposed rule addresses procedure, Health facilities, Medicare,
Addendum to this supplemental the changes that affect our proposed Puerto Rico, Reporting and
proposed rule, consistent with our policies and payment rates for FY 2011 recordkeeping requirements.
existing methodology, we are proposing under the IPPS and the LTCH PPS. 42 CFR Part 413
to apply a normalization factor of
1.10362 (computed as described in A 60-day comment period on this Health facilities, Kidney diseases,
section VII.C.3.g. (step 7) of the supplemental proposed rule would be Medicare, Puerto Rico, Reporting and
preamble to the May 4, 2010 FY 2011 both impracticable and contrary to the recordkeeping requirements.
IPPS/LTCH PPS proposed rule) and a public interest because it would not For the reasons stated in the preamble
budget neutrality factor of 0.987632 allow for coordinated consideration of of this proposed rule, the Centers for
(computed as described above). Table 11 the comments on this supplemental Medicare & Medicaid Services is
in the Addendum to this supplemental proposed rule with those on the FY proposing to amend 42 CFR chapter IV
proposed rule lists the proposed MS– 2011 IPPS/LTCH PPS proposed rule. as follows:
LTC–DRGs and their respective Because the issues raised in this
proposed relative weights, geometric supplemental proposed rule are integral PART 412—PROSPECTIVE PAYMENT
mean length of stay, and five-sixths of to our consideration of comments on SYSTEMS FOR INPATIENT HOSPITAL
the geometric mean length of stay (used certain proposals in the FY 2011 IPPS/ SERVICES
in determining SSO payments under LTCH PPS proposed rule, we do not 1. The authority citation for part 412
§ 412.529) for FY 2011. (We note that believe it would be appropriate to continues to read as follows:
there are no changes to the geometric review comments on the issues raised in
mean length of stay and five-sixths of Authority: Secs. 1102 and 1871 of the
this supplemental proposed rule in Social Security Act (42 U.S.C. 1302 and
the geometric mean length of stay that isolation from the comments received 1395hh), and sec. 124 of Public Law 106–113
were published in Table 11 of the May on the FY 2011 IPPS/LTCH PPS (113 Stat. 1501A–332).
4, 2010 FY 2011 IPPS/LTCH PPS proposed rule. We further note that a
proposed rule as the calculation of these full 60-day comment period would end
§ 412.23 [Amended]
statistics is independent of the standard on a date that would not allow the 2. In § 412.23, paragraphs (e)(6)(i) and
Federal rate.) (e)(7)(ii) are amended by removing the
agency sufficient time to process the
III. Other Required Information comments and respond to them in a date ‘‘December 28, 2010’’ and adding
the date ‘‘December 28, 2012’’ in its
A. Collection of Information meaningful manner by the August 1,
place.
Requirements 2010 date for issuing the final rule. If we 3. Section 412.64 is amended by—
allowed for a full 60-day comment A. Revising paragraphs (d)(1) and
This document does not impose period, timely filed comments would
information collection and (e)(4).
receive a shorter period of time for B. Adding a new paragraph (m).
recordkeeping requirements. consideration by the agency, and the
Consequently, it need not be reviewed agency would be left with insufficient § 412.64 Federal rates for inpatient
by the Office of Management and operating costs for Federal fiscal year 2005
time to properly respond to comments
Budget under the authority of the and subsequent fiscal years.
and appropriately resolve whether any
Paperwork Reduction Act of 1995 (44 * * * * *
of the proposed policies should be
U.S.C. Chapter 35). (d) Applicable percentage change for
modified in light of comments received.
B. Waiver of 60-Day Comment Period fiscal year 2005 and for subsequent
For all of these reasons, we find good
fiscal years.
We ordinarily publish a notice of cause to waive the 60-day comment (1) Subject to the provisions of
proposed rulemaking in the Federal period for this rule of proposed paragraph (d)(2) of this section, the
Register and permit a 60-day comment rulemaking, and we are instead applicable percentage change for
period, as provided in section 1871(b)(1) providing for a comment period that updating the standardized amount is—
of the Act. This period, however, may coincides with the comment period (i) For fiscal year 2005 through fiscal
be shortened, as provided under section provided for the FY 2011 IPPS/LTCH year 2009, the percentage increase in the
1871(b)(2)(C) of the Act, when the PPS proposed rule that appeared in the market basket index for prospective
Secretary finds good cause that a 60-day May 4, 2010 Federal Register. payment hospitals (as defined in
comment period would be § 413.40(a) of this subchapter) for
impracticable, unnecessary, or contrary IV. Response to Comments
hospitals in all areas.
to the public interest and incorporates a Because of the large number of public (ii) For fiscal year 2010, for
statement of the finding and its reasons comments we normally receive on discharges—
in the rule issued. For this supplemental Federal Register documents, we are not (A) On or after October 1, 2009 and
proposed rule, we are waiving the 60- before April 1, 2010, the percentage
able to acknowledge or respond to them
day comment period for good cause and increase in the market basket index for
individually. We will consider all
allowing a comment period that prospective payment hospitals (as

coincides with the comment period comments we receive by the date and
defined in § 413.40(a) of this
provided for on the FY 2011 IPPS/LTCH time specified in the DATES section of subchapter) for hospitals in all areas;
PPS proposed rule (75 FR 23852). this preamble, and, when we proceed and
As we explained in the FY 2011 IPPS/ with a subsequent document, we will (B) On or after April 1, 2010 and
LTCH PPS proposed rule (75 FR 23859), respond to the comments in the before October 1, 2010, the percentage
due to the timing of the enactment of preamble to that document. increase in the market basket index
Public Law 111–148 and Public Law minus 0.25 percentage points for
prospective payment hospitals (as Census Bureau to determine county § 412.101 Special treatment: Inpatient
defined in § 413.40(a) of this definitions and population density. This hospital payment adjustment for low-
subchapter) for hospitals in all areas. analysis will be periodically revised, volume hospitals.
(iii) For fiscal year 2011, the such as for updates to the decennial (a) Definitions. Beginning in FY 2011,
percentage increase in the market basket census data. the terms used in this section are
index minus 0.25 percentage points for defined as follows:
(ii) CMS will include a listing of Medicare discharges means discharge
prospective payment hospitals (as qualifying Frontier States and denote
defined in § 413.40(a) of this of inpatients entitled to Medicare Part
the hospitals receiving a wage index A, including discharges associated with
subchapter) for hospitals in all areas. increase attributable to this provision in
* * * * * individuals whose inpatient benefits are
its annual updates to the hospital exhausted or whose stay was not
(e) * * * inpatient prospective payment system
(4) CMS makes an adjustment to the covered by Medicare and also
published in the Federal Register. discharges of individuals enrolled in a
wage index to ensure that aggregate
4. Section 412.73 is amended by— MA organization under Medicare Part C.
payments after implementation of the
A. Revising paragraph (c)(15). Road miles means ‘‘miles’’ as defined
rural floor under section 4410 of the
in § 412.92(c)(1).
Balanced Budget Act of 1997 (Pub. L. B. Adding a new paragraph (c)(16). (b) General considerations. (1) CMS
105–33) and the imputed floor under provides an additional payment to a
The revision and addition read as
paragraph (h)(4) of this section are equal qualifying hospital for the higher
follows:
to the aggregate prospective payments incremental costs associated with a low
that would have been made in the § 412.73 Determination of the hospital volume of discharges. The amount of
absence of such provisions as follows: specific rate based on a Federal fiscal year
any additional payment for a qualifying
(i) Beginning October 1, 2008, such 1982 base period.
hospital is calculated in accordance
adjustment is transitioned from a * * * * * with paragraph (c) of this section.
nationwide to a statewide adjustment as (c) * * * (2) In order to qualify for this
follows: adjustment a hospital must meet the
(A) From October 1, 2008 through (15) For Federal fiscal year 2003
through Federal fiscal year 2009. For following criteria:
September 30, 2009, the wage index is (i) For FY 2005 through FY 2010, a
a blend of 20 percent of a wage index Federal fiscal year 2003 through Federal
fiscal year 2009, the update factor is the hospital must have less than 200 total
with a statewide adjustment and 80 discharges, which includes Medicare
percent of a wage index with a percentage increase in the market basket
index for prospective payment hospitals and non-Medicare discharges, during
nationwide adjustment. the fiscal year, as reflected in its cost
(B) From October 1, 2009 through (as defined in § 413.40(a) of this
chapter). report specified in paragraph (b)(3) of
September 30, 2010, the wage index is this section, and be located more than
a blend of 50 percent of a wage index (16) For Federal fiscal year 2010 and 25 road miles (as defined in paragraph
with a statewide adjustment and 50 subsequent years. For Federal fiscal year (a) of this section from the nearest
percent of a wage index with a 2010 and subsequent years, the update ‘‘subsection (d)’’ (section 1886(d) of the
nationwide adjustment. factor is the percentage increase Act) hospital.
(ii) Beginning October 1, 2010, such specified in § 412.64(d). (ii) For FY 2011 and FY 2012, a
adjustment is a full nationwide * * * * * hospital must have less than 1,600
adjustment. Medicare discharges, as defined in
* * * * * § 412.75 [Amended] paragraph (a) of this section, during the
(m) Adjusting the wage index to 5. In § 412.75, paragraph (d) is fiscal year, as reflected in its cost report
account for the Frontier State floor. amended by removing the citation specified in paragraph (b)(3) of this
(1) General criteria. For discharges ‘‘§ 412.73(c)(15)’’ and adding the citation section, and be located more than 15
occurring on or after October 1, 2010, ‘‘§ 412.73(c)(15) and § 412.73(c)(16)’’ in road miles, as defined in paragraph (a)
CMS adjusts the hospital wage index for its place. of this section, from the nearest
hospitals located in qualifying States to ‘‘subsection (d)’’ (section 1886(d) of the
recognize the wage index floor § 412.77 [Amended] Act) hospital.
established for frontier States. A 6. In § 412.77, paragraph (e) is (iii) For FY 2013 and subsequent
qualifying frontier State meets both of amended by removing the reference fiscal years, a hospital must have less
the following criteria: ‘‘(c)(15)’’ and adding the reference than 200 total discharges, which
(i) At least 50 percent of counties ‘‘(c)(16)’’ in its place. includes Medicare and non-Medicare,
located within the State have a reported during the fiscal year, as reflected in its
population density less than 6 persons § 412.78 [Amended] cost report specified in paragraph (b)(3)
per square mile. of this section, and be located more than
7. In § 412.78, paragraph (e) is
(ii) The State does not receive a non- 25 road miles as defined in paragraph
amended by removing the citation
labor related share adjustment (a) of this section from the nearest
‘‘§ 412.73(c)(15)’’ and adding the citation
determined by the Secretary to take into ‘‘subsection (d)’’ (section 1886(d) of the
‘‘§ 412.73(c)(15) and § 412.73(c)(16)’’ in
account the unique circumstances of Act) hospital.
its place. (3) The fiscal intermediary or
hospitals located in Alaska and Hawaii.
(2) Amount of wage index adjustment. § 412.79 [Amended] Medicare administrative contractor
A hospital located in a qualifying State makes the determination of the
will receive a wage index value not less 8. In § 412.79, paragraph (d) is discharge count for purposes of
than 1.00. amended by removing the phrase ‘‘and determining a hospital’s qualification
(3) Process for determining and (c)(15)’’ and adding the phrase ‘‘through for the adjustment based on the
posting wage index adjustments. (i) (c)(16)’’ in its place. hospital’s most recently submitted cost
CMS uses the most recent Population 9. Section 412.101 is revised to read report and for qualification for FYs 2011
Estimate data published by the U.S. as follows: and 2012 other documentation of
Medicare discharges (as defined in A. In paragraph (a)(1) introductory (3) * * *

paragraph (a) of this section). text the phrase ‘‘before October 1, 2011’’ (vi) For long-term care hospital
(4) In order to qualify for the is removed and the phrase ‘‘before prospective payment system rate year
adjustment, a hospital must provide its October 1, 2012’’ is added in its place. beginning October 1, 2009 and ending
fiscal intermediary or Medicare B. In paragraph (c)(2)(iii) introductory September 30, 2010. (A) The standard
administrative contractor with sufficient text the phrase ‘‘before October 1, 2010’’ Federal rate for long-term care hospital
evidence that it meets the distance is removed and the phrase ‘‘before prospective payment system rate year
requirement specified under paragraph October 1, 2012’’ is added in its place. beginning October 1, 2009 and ending
(b)(2) of this section. The fiscal 11. Section 412.211 is amended by September 30, 2010 is the standard
intermediary or Medicare administrative revising paragraph (c) to read as follows: Federal rate for the previous long-term
contractor will base its determination of care hospital prospective payment
§ 412.211 Puerto Rico rates for Federal
whether the distance requirement is fiscal year 2004 and subsequent fiscal system rate year updated by 1.74
satisfied upon the evidence presented years. percent. The standard Federal rate is
by the hospital and other relevant adjusted, as appropriate, as described in
* * * * *
evidence, such as maps, mapping paragraph (d) of this section.
(c) Computing the standardized
software, and inquiries to State and
amount. CMS computes a Puerto Rico (B) With respect to discharges
local police, transportation officials, or
standardized amount that is applicable occurring on or after October 1, 2009
other government officials.
to all hospitals located in all areas. The and before April 1, 2010, payments are
(c) Determination of the adjustment
applicable percentage change for based on the standard Federal rate in
amount. The low-volume adjustment for
updating the Puerto Rico specific paragraph (c)(3)(v) of this section
hospitals that qualify under paragraph
standardized amount is as follows: updated by 2.0 percent.
(b) of this section are as follows for the
(1) For fiscal year 2004 through fiscal
applicable fiscal year: (vii) For long-term care hospital
year 2009, increased by the applicable
(1) For FY 2005 through FY 2010, the prospective payment system fiscal year
percentage change specified in
adjustment is 25 percent for each beginning October 1, 2010, and ending
§ 412.64(d)(1)(ii)(A).
Medicare discharge. September 30, 2011. The standard
(2) For fiscal year 2010, increased by
(2) For FY 2011 and FY 2012, the Federal rate for the long-term care
the market basket index for prospective
adjustment is as follows: hospital prospective payment system
payment hospitals (as defined in
§ 413.40(a) of this subchapter) for fiscal year beginning October 1, 2010,
Payment and ending September 30, 2011, is the
adjustment hospitals in all areas.
Medicare discharge range (percent (3) For fiscal year 2011, increased by standard Federal rate for the previous
add-on) the applicable percentage change long-term care hospital prospective
specified in § 412.64(d)(1)(iii). payment system rate year updated by
1–200 ...................................... 25.0000 ¥0.59 percent. The standard Federal
201–301 .................................. 23.3333 * * * * * rate is adjusted, as appropriate, as
301–400 .................................. 21.6667 described in paragraph (d) of this
§ 412.230 [Amended]
401–500 .................................. 20.0000 section.
501–600 .................................. 18.3333 12. In § 412.230 paragraph
601–700 .................................. 16.6667 (d)(1)(iv)(E) is amended by removing the * * * * *
701–800 .................................. 15.0000 figures ‘‘86’’ and ‘‘88’’ adding the figures § 412.529 [Amended]
801–900 .................................. 13.3333 ‘‘82’’ and ‘‘84’’ in their place,
901–1,000 ............................... 11.6667 respectively. 16. In § 412.529, paragraphs (c)(2)
1,001–1,100 ............................ 10.0000 introductory text and (c)(3) introductory
1,101–1,200 ............................ 8.3333 § 412.232 [Amended] text are amended by removing the date
1,201–1,300 ............................ 6.6667 13. In § 412.232, paragraph (c)(3) is
1,301–1,400 ............................ 5.0000
‘‘December 29, 2010’’ and adding in its
amended by removing the figure ‘‘88’’ place the date ‘‘December 29, 2012’’ each
1,401–1,500 ............................ 3.3333
1,501–1,599 ............................ 1.6667
and adding the figure ‘‘85’’ in its place. time it appears.
1,600 or more ......................... 0.0000 § 412.234 [Amended] § 412.534 [Amended]
14. In § 412.234, paragraph (b)(3) is
(3) For FY 2013 and subsequent years, 17. Section 412.534 is amended as
amended by removing the figure ‘‘88’’
the adjustment is 25 percent for each follows:
and adding the figure ‘‘85’’ in its place.
Medicare discharge. A. Paragraphs (c)(1), (c)(2), (d)(1),
(d) Eligibility of new hospitals for the § 412.523 [Amended] (d)(2), (e)(1), (e)(2) are amended by
adjustment. A new hospital will be 15. Section 412.523 is amended as removing the date ‘‘October 1, 2010’’ and
eligible for a low-volume adjustment follows: adding in its place the date ‘‘October 1,
under this section once it has submitted A. Revise paragraph (c)(3)(vi). 2012’’ each time it appears.
a cost report for a cost reporting period B. Add paragraph (c)(3)(vii).
that indicates that it meets discharge B. Paragraphs (c)(3), (d)(3), (e)(3),
C. Paragraph (d)(3) is amended by
requirements during the applicable (h)(4), and (h)(5) are amended by
removing the phrase ‘‘December 29,
fiscal year and has provided its fiscal removing the date ‘‘July 1, 2010’’ and
2010, and by no later than October 1,
intermediary or Medicare administrative adding in its place the date ‘‘July 1,
2012’’ and adding the phrase ‘‘December
contractor with sufficient evidence that 2012’’ each time it appears.

29, 2012,’’ in its place.
it meets the distance requirement, as The revision and addition read as § 412.536 [Amended]
specified under paragraph (b)(2) of this follows:
section. 18. In § 412.536, paragraph (a)(2)
§ 412.523 Methodology for calculating the introductory text is amended by
§ 412.108 [Amended] Federal prospective payment rates. removing the date ‘‘July 1, 2010’’ and
10. Section 412.108 is amended as * * * * * adding the date ‘‘July 1, 2012’’ in its
follows: (c) * * * place.
PART 413—PRINCIPLES OF Dated: May 13, 2010. estimate of the market basket rate-of-increase
REASONABLE COST Marilyn Tavenner, of 2.15 percent minus 2.0 percentage points).
REIMBURSEMENT; PAYMENT FOR Acting Administrator, Centers for Medicare B. Proposed Budget Neutrality Adjustments
END-STAGE RENAL DISEASE & Medicaid Services. Factors for Recalibration of DRG Weights and
SERVICES; OPTIONAL Approved: May 18, 2010. Updated Wage Index
PROSPECTIVELY DETERMINED Kathleen Sebelius, In the FY 2011 IPPS/LTCH PPS proposed
PAYMENT RATES FOR SKILLED Secretary. rule we explained our methodology for
NURSING FACILITIES calculating the FY 2011 proposed DRG
Note: The following Addendum and
reclassification and recalibration and
19. The authority citation for part 413 Appendix will not appear in the Code of
updated wage index budget neutrality factor
continues to read as follows: Federal Regulations.
(75 FR 24064). Except as explained below,
Authority: Secs. 1102, 1812(d), 1814(b), we apply this same methodology in
Addendum: FY 2011 Supplemental
1815, 1833(a), (i), and (n), 1861(v), 1871, recalculating this budget neutrality
1881, 1883, and 1886 of the Social Security Proposed Payment Rates
adjustment to reflect the changes to the
Act (42 U.S.C. 1302, 1395d(d), 1395f(b), I. Supplemental Proposed FY 2011 standardized amount required by the
1395g, 1395l(a), (i), and (n), 1395x(v), Prospective Payment Systems Payment Affordable Care Act.
1395hh, 1395rr, 1395tt, and 1395ww); and Rates for Hospital Inpatient Operating As discussed above, sections 3401(a) and
sec. 124 of Public Law 106–133 (113 Stat. section 10319(a) of Public Law 111–148
and Capital Related Costs
1501A–332). amends section 1886(b)(3)(B)(i) of the Act,
20. Section 413.70 is amended as As discussed in section II.B. of the which defines the applicable percentage
follows: preamble to this supplemental proposed rule, increase. Although these amendments
changes to the applicable percentage
A. Revise paragraph (b)(3)(ii)(A). modify the applicable percentage increase
increase, wage index, and rural community
B. Redesignate paragraph (b)(5)(i) as applicable to the FY 2010 rates under the
hospital demonstration mandated by the
(b)(5)(i)(A). Affordable Care Act necessitate the IPPS, section 3401(p) of Public Law 111–148
C. In newly redesignated paragraph recalculation of the FY 2011 proposed budget states that the amendments do not apply to
(b)(5)(i)(A), the phrase ‘‘on or after neutrality factors, outlier threshold and discharges occurring prior to April 1, 2010.
December 21, 2000,’’ is removed and the standardized amounts. In the FY 2011 IPPS/ Accordingly, for purposes of determining
LTCH PPS proposed rule we explained our payment amounts for discharges occurring on
phrase ‘‘on or after December 21, 2000
methodology for calculating the FY 2011 or after April 1, 2010, in order to comply
and on or before December 31, 2003,’’ is
proposed budget neutrality factors (75 FR with the statute in section 3401(p) of Public
added in its place. 24062 through 24073). Except as explained Law 111–148, we applied the revised FY
D. Add a new paragraph (b)(5)(i)(B). below, we apply this same methodology in 2010 rates effective with discharges on or
The revision and addition read as recalculating these budget neutrality after April 1, 2010 until the end of FY 2010.
follows: adjustments to reflect the changes to the However, for purposes of determining the
standardized amount required by the budget neutrality adjustments for FY 2011,
§ 413.70 Payment for services of a CAH. Affordable Care Act. A complete discussion the statute requires us to simulate the FY
* * * * * of our computation of the FY 2011 proposed 2010 hospital as if hospitals were paid for all
(b) * * * budget neutrality factors, outlier threshold of FY 2010 based on the FY 2010 rates that
(3) * * * and standardized amounts is found below. are effective for payments for discharges
(ii) * * * A. Updating the Average Standardized occurring on or after April 1, 2010.
(A) Effective for cost reporting periods Amounts For FY 2011 we are proposing a proposed
beginning on or after January 1, 2004, As discussed section II.B. of the preamble DRG reclassification and recalibration factor
for facility services not including any to this supplemental proposed rule, sections of 0.996867 and a proposed budget neutrality
services for which payment may be 3401(a) and section 10319(a) of Public Law factor of 1.000070 for changes to the wage
made under paragraph (b)(3)(ii)(B) of 111–148, amends section 1886(b)(3)(B)(i) of index. We multiplied the proposed DRG
this section, 101 percent of the the Act to provide that the FY 2011 reclassification and recalibration budget
reasonable costs of the services as applicable percentage increase for IPPS neutrality factor of 0.996867 by the proposed
determined under paragraph (b)(2)(i) of hospitals equals the rate-of-increase in the budget neutrality factor of 1.000070 for
hospital market basket for IPPS hospitals in changes to the wage index to determine the
this section; and all areas minus a 0.25 percentage point, proposed DRG reclassification and
* * * * * subject to the hospital submitting quality recalibration and updated wage index budget
(5) * * * information under rules established by the neutrality factor of 0.996937 (as required by
(i) * * * Secretary in accordance with section sections 1886(d)(4)(C)(iii) and 1886(d)(3)(E)(i)
(B) Effective for cost reporting periods 1886(b)(3)(B)(viii) of the Act. For hospitals of the Act).
beginning on or after January 1, 2004, that fail to submit quality data consistent
with section 1886(b)(3)(B)(viii) of the Act, the C. Reclassified Hospitals—Budget Neutrality
payment for ambulance services update is equal to the market basket Adjustment
furnished by a CAH or an entity that is percentage increase minus a 0.25 percentage
owned and operated by a CAH is 101 Due to the Affordable Care Act, it is also
point less an additional 2.0 percentage necessary to revise the reclassification budget
percent of the reasonable costs of the points. Therefore, for this supplemental
neutrality factor. As discussed in section II.A.
CAH or the entity in furnishing those proposed rule, based on IHS Global Insight,
of the preamble to this supplemental
services, but only if the CAH or the Inc.’s first quarter 2010 forecast of the FY
2011 market basket increase, the estimated proposed rule, section 3137(c) of Public Law
entity is the only provider or supplier of 111–148 revised the average hourly wage
ambulance services located within a 35- update to the FY 2011 operating standardized
standards resulting in our estimate that 23
mile drive of the CAH or the entity. amount is 2.15 percent (that is, the FY 2011
estimate of the market basket rate-of-increase additional hospitals will be reclassified (or
* * * * * of 2.4 percent minus 0.25 percentage points) receive their primary reclassifications. Using
Authority: for hospitals in all areas, provided the the methodology proposed in the FY 2011
(Catalog of Federal Domestic Assistance hospital submits quality data in accordance IPPS proposed rule, and incorporating the
Program No. 93.773, Medicare—Hospital with our rules. For hospitals that do not provision above, we computed a factor of
Insurance; and Program No. 93.774, submit quality data, the estimated update to 0.991476 for reclassification budget
Medicare—Supplementary Medical the operating standardized amount is 0.15 neutrality, as required by section
Insurance Program) percent (that is, the adjusted FY 2011 1886(d)(8)(D) of the Act.
D. Rural and Imputed Floor Budget that will modify reimbursement for inpatient exceeded the amount offset by the budget
Neutrality services for up to 15 small rural hospitals. neutrality adjustment for FY 2007.
We make an adjustment to the wage index Section 410A(c)(2) of Public Law 108–173
requires that ‘‘in conducting the F. Proposed FY 2011 Outlier Fixed-Loss Cost
to ensure that aggregate payments after Threshold
implementation of the rural floor under demonstration program under this section,
section 4410 of the BBA (Pub. L. 105–33) and the Secretary shall ensure that the aggregate In order to compute the FY 2011 proposed
the imputed floor under § 412.64(h)(4) of the payments made by the Secretary do not outlier threshold, we used the same
regulations are made in a manner that exceed the amount which the Secretary methodology in this supplemental proposed
ensures that aggregate payments to hospitals would have paid if the demonstration rule that we used in the FY 2011 IPPS/LTCH
are not affected. As discussed in section III.B. program under this section was not PPS proposed rule (75 FR 24068 through
of the preamble of the FY 2009 IPPS final implemented.’’ In the proposed rule we did 24069; and incorporated the provisions of
rule (73 FR 48570 through 48574), we not apply an adjustment to the standardized Pub. L. 111–148 and Pub. L. 111–152 as
adopted as final State level budget neutrality amount to ensure the effects of the rural discussed above). However, as discussed in
for the rural and imputed floors, effective community hospital demonstration are section II.A. of the preamble to this
beginning with the FY 2009 wage index. In budget neutral. However, section 450(a) of
supplemental proposed rule, in accordance
response to the public’s concerns and taking the MMA as amended by sections 3123 and
with section 10324(a) of Public Law 111–148,
into account the potentially significant 10313 of Public Law 111–148 extends the
beginning in FY 2011, we are proposing to
payment cuts that could occur to hospitals in demonstration for an additional 5 years, and
allows not more than 30 hospitals to create a wage index floor of 1.00 for all
some States if we implemented this change
participate in the 20 least densely populated hospitals located in States determined to be
with no transition, we decided to phase in,
States. Frontier States. We noted that the Frontier
over a 3-year period, the transition from the
national rural floor budget neutrality In order to achieve budget neutrality, we State floor adjustments will be calculated and
adjustment on the wage index to the State are proposing to adjust the national IPPS applied after rural and imputed floor budget
level rural floor budget neutrality adjustment rates by an amount sufficient to account for neutrality adjustments are calculated for all
on the wage index. In FY 2011 IPPS/LTCH the added costs of this demonstration. In labor market areas, so as to ensure that no
PPS proposed rule, in the absence of other words, we are proposing to apply hospital in a Frontier State will receive a
provisions of Public Law 111–148, the budget neutrality across the payment system wage index lesser than 1.00 due to the rural
proposed adjustment would have been as a whole rather than merely across the and imputed floor adjustment. In accordance
completely transitioned to the State level participants of this demonstration, consistent with section 10324(a) of Public Law 111–148,
methodology, such that the wage index that with past practice. We believe that the the Frontier State adjustment will not be
was proposed in the FY 2011 IPPS/LTCH language of the statutory budget neutrality subject to budget neutrality, and will only be
PPS proposed rule was determined by requirement permits the agency to implement extended to hospitals geographically located
applying 100 percent of the State level the budget neutrality provision in this within a Frontier State. However, for
budget neutrality adjustment. However, manner. The statutory language requires that purposes of estimating the proposed outlier
section 3141 of Public Law 111–148 restores ‘‘aggregate payments made by the Secretary threshold for FY 2011, it is necessary to
the budget neutrality adjustment for the rural do not exceed the amount which the apply this provision by adjusting the wage
and imputed floors to a uniform, national Secretary would have paid if the index of those eligible hospitals in a Frontier
adjustment, beginning with the FY 2011 demonstration * * * was not implemented,’’ State when calculating the outlier threshold
wage index. but does not identify the range across which that results in outlier payments being 5.1
Using the same methodology in prior final aggregate payments must be held equal. As percent of total payments for FY 2011. If we
rules to calculate the national rural and mentioned section II.F. of the preamble to did not take into account this provision, our
imputed floor budget neutrality adjustment this supplemental proposed rule, the estimate of total FY 2011 payments would be
factor (which was part of the methodology to proposed estimated amount for the
too low, and as a result, our proposed outlier
calculate the blended rural and imputed floor adjustment to the national IPPS rates for FY
threshold would be too high, such that
budget neutrality adjustment factors), to 2011 is $69,279,673. Accordingly to account
estimated outlier payments would be less
determine the proposed wage index adjusted for the changes in the Affordable Care Act,
we computed a proposed factor of 0.999313 than our projected 5.1 percent of total
by the national rural and imputed floor payments.
budget neutrality adjustment, we used FY for the rural community hospital
demonstration program adjustment. We note We are proposing an outlier fixed-loss cost
2009 discharge data and proposed FY 2011
that because the settlement process for the threshold for FY 2011 equal to the
wage indices to simulate IPPS payments.
demonstration hospitals’ third year cost prospective payment rate for the DRG, plus
First, we compared the national simulated
payments without the rural and imputed reports, that is, cost reporting periods starting any IME and DSH payments, and any add-
floors applied to national simulated in FY 2007, has experienced a delay, for this on payments for new technology, plus
payments with the rural and imputed floors FY 2011 IPPS proposed rule, we are unable $24,165.
applied to determine the national rural and to state the costs of the demonstration G. FY 2011 Proposed Outlier Adjustment
imputed floor budget neutrality adjustment corresponding to FY 2007 and as a result are Factors
factor of 0.995425. This national adjustment unable to propose the specific numeric
was then applied to the wage indices to adjustment representing this offsetting Using the same methodology in this
produce a national rural and imputed floor process that would be applied to the national supplemental proposed rule that we used in
budget neutral wage index. IPPS rates (as discussed above). However, we the FY 2011 IPPS/LTCH PPS proposed rule
expect the cost reports beginning in FY 2007 (75 FR 24069; and incorporating the
E. Proposed Rural Community Hospital for hospitals that participated during FY provisions of the Affordable Care Act as
Demonstration Program Adjustment 2007 to be settled before the FY 2011 IPPS/ discussed above), we computed the following
As discussed in section II.F. of the LTCH final rule is published. Therefore, for proposed FY 2011 outlier adjustment factors
preamble to this supplemental proposed rule, the FY 2011 IPPS/LTCH PPS final rule, we that are applied to the proposed FY 2011
section 410A of Public Law 108–173 requires expect to be able to calculate the amount by standardized amount for the proposed FY
the Secretary to establish a demonstration which the costs corresponding to FY 2007 2011 outlier threshold:
Operating Capital federal rate

standardized amounts
National ............................................................................................................................ 0.948995 0.943217

Puerto Rico ...................................................................................................................... 0.951459 0.925238
H. Proposed FY 2011 Standardized Amount only in that the labor-related share applied to Below is a revised table reflecting the
We calculated the proposed FY 2011 the proposed standardized amounts in Table changes required by the provisions of the
1A is 68.8 percent, and the labor-related Affordable Care Act that details the
standardized amounts using the methodology
share applied to the proposed standardized calculation of the proposed FY 2011
proposed in the FY 2011 IPPS proposed rule amounts in Table 1B is 62 percent.
taking into account the changes required by standardized amounts. We note that our
In addition, Tables 1A and 1B include the proposed adjustment for documentation and
the provisions of Public Law 111–148. Tables proposed standardized amounts reflecting
1A and 1B in this supplemental proposed coding discussed at (75 FR 24065 through
the adjusted marker basket update of 2.15
rule contain the proposed national 24067) has not changed since publication of
percent update for FY 2011, and proposed
standardized amount that we are applying to standardized amounts reflecting the 2.0 the FY 2011 IPPS/LTCH proposed rule.
all hospitals, except hospitals in Puerto Rico. percentage point reduction to the update (a Similar to the FY 2011 IPPS/LTCH PPS
The proposed Puerto Rico-specific amounts 0.15 percent update) applicable for hospitals proposed rule, the adjustment of 0.957 is
are shown in Table 1C. The proposed that fail to submit quality data consistent reflected within the table below.
amounts shown in Tables 1A and 1B differ with section 1886(b)(3)(B)(viii) of the Act. BILLING CODE 4120–01–P
The proposed labor-related and nonlabor- hospitals for FY 2011 are set forth in Table Rico-specific standardized amount is either
related portions of the national average 1C in this supplemental proposed rule. (The 62.1 percent or 62 percent, depending on
standardized amounts for Puerto Rico labor-related share applied to the Puerto which is more advantageous to the hospital.)
EP02JN10.029</GPH>
I. Proposed Adjustments for Area Wage May 4, 2010 FY 2011 IPPS proposed rule and total operating IPPS DRG payments. The
Levels remains at 1.5 percent for FY 2011. proposed outlier thresholds for FY 2011 are
The following wage index tables were A full discussion of the proposed update in section III.A.6. of this Addendum. For FY
revised in this supplemental proposed rule as framework is provided in that proposed rule 2011, a case would qualify as a cost outlier
a result of the provisions of Public Law 111– (75 FR 24074 through 24076). if the cost for the case plus the IME and DSH
148: Tables 2, 4A, 4B, 4C, 4D–2, 4J, and 9A. B. Proposed Outlier Payment Adjustment payments is greater than the prospective
(These tables are also available on the CMS Factor payment rate for the MS–DRG plus the fixed-
Web site.) loss amount of $24,165.
Based on the thresholds as set forth in
II. Supplemental Proposed FY 2011 section III.A.6. of this Addendum, we C. Proposed Budget Neutrality Adjustment
Prospective Payment Systems Payment Rates estimate that outlier payments for capital- Factor for Changes in DRG Classifications
for Capital Related Costs related costs would equal 5.68 percent for and Weights and the GAF
Although the provisions of Public Law inpatient capital-related payments based on Using the methodology discussed in
111–148, do not directly affect the payment the proposed capital Federal rate in FY 2011.
section III.A.3. of the Addendum to the May
rates and policies for the IPPS for capital- Therefore, we are proposing to apply an
4, 2010 FY 2011 IPPS/LTCH PPS proposed
related costs, as discussed in section II.G. of outlier adjustment factor of 0.9432 in
rule (75 FR 24077 through 24079), for FY
the preamble of this supplemental proposed determining the capital Federal rate. For FY
2010, after taking into account the provisions 2011, we are proposing a GAF/DRG budget
rule, we are proposing the capital IPPS neutrality factor of 1.0015, which is the
standard Federal rates for FY 2011. This is of the Affordable Care Act, we estimated that
outlier payments for capital would equal 5.22 product of the proposed incremental GAF
necessary because the wage index changes
required by the provisions of Public Law percent of inpatient capital-related payments budget neutrality factor of 1.0023 and the
111–148 (discussed above in section II.A. of (which required an outlier adjustment factor proposed DRG budget neutrality factor of
preamble to this supplemental proposed rule) of 0.9478) based on the capital Federal rate 0.9992 (the proposed DRG budget neutrality
affect the proposed budget neutrality in FY 2010 (as discussed elsewhere in this factor remains unchanged from the May 4,
adjustment factor for changes in DRG Federal Register). Thus, we estimate that the 2010 FY 2011 IPPS proposed rule). The GAF/
classifications and weights and the percentage of capital outlier payments to DRG budget neutrality factors are built
geographic adjustment factor (GAF) since the total capital standard payments for FY 2011 permanently into the capital rates; that is,
GAF values are derived from the wage index would be higher than the percentage for FY they are applied cumulatively in determining
values (see § 412.316(a)). In addition, the 2010. This increase in capital outlier the capital Federal rate. This follows the
provisions of Public Law 111–148, also payments is primarily due to the estimated requirement that estimated aggregate
necessitate a revision to the proposed outlier decrease in capital IPPS payments per payments each year be no more or less than
payment adjustment factor since a single set discharge. That is, because capital payments they would have been in the absence of the
of thresholds is used to identify outlier cases per discharge are projected to be slightly annual DRG reclassification and recalibration
for both inpatient operating and inpatient lower in FY 2011 compared to FY 2010, as and changes in the GAFs. The incremental
capital-related payments (see § 412.312(c)). shown in Table III. in section VIII. of the change in the proposed adjustment from FY
In this supplemental proposed rule, we Appendix to this supplemental proposed 2010 to FY 2011 is 1.0015. The cumulative
have calculated the proposed FY 2011 capital rule, more cases would qualify for outlier change in the proposed capital Federal rate
Federal rates, offsets, and budget neutrality payments. due to this adjustment is 0.9926 (the product
factors using the same methodology we The outlier reduction factors are not built of the incremental factors for FYs 1995
proposed in the May 4, 2010 FY 2011 IPPS/ permanently into the capital rates; that is, though 2010 and the proposed incremental
LTCH PPS proposed rule (CMS–1498–P) that they are not applied cumulatively in factor of 1.0015 for FY 2011). (We note that
was used to calculate the proposed rates determining the capital Federal rate. The averages of the incremental factors that were
included in that rule which did not reflect proposed FY 2011 outlier adjustment of
in effect during FYs 2005 and 2006,
the provision of Public Law 111–148. For a 0.9432 is a -0.49 percent change from the FY
respectively, and the revised FY 2010 factor
complete description of this methodology, 2010 outlier adjustment of 0.9478. Therefore,
of 0.9994 that reflect the effect of the
please see the May 4, 2010 FY 2011 IPPS/ the net change in the outlier adjustment to
the proposed capital Federal rate for FY 2011 provisions of the Affordable Care Act (as
LTCH PPS proposed rule (75 FR 24073
is 0.9951 (0.9432/0.9478). Thus, the proposed discussed elsewhere in this Federal Register)
through 24082).
outlier adjustment decreases the proposed FY were used in the calculation of the
A. Proposed Capital Standard Federal Rate 2011 capital Federal rate by 0.49 percent cumulative adjustment of 0.9926 for FY
Update for FY 2011 compared with the FY 2010 outlier 2011.) The proposed cumulative adjustments
The proposed factors used in the update adjustment. for MS–DRG classifications and proposed
framework are not affected by the provisions A single set of thresholds is used to changes in relative weights and for proposed
of the Affordable Care Act. Therefore, the identify outlier cases for both inpatient changes in the national GAFs through FY
proposed update factor for FY 2011 is not operating and inpatient capital-related 2011 is 0.9926. The following table
being revised from the proposed capital IPPS payments (see § 412.312(c)). The outlier summarizes the adjustment factors for each
standard Federal rate update factor discussed thresholds are set so that operating outlier fiscal year:
in section III.A.1. of the Addendum to the payments are projected to be 5.1 percent of BILLING CODE 4120–01–P
BILLING CODE 4120–01–C The proposed factor accounts for the recalibration and for proposed changes in the
proposed MS–DRG reclassifications and GAFs, which include the changes to the wage
EP02JN10.030</GPH>
index as required by the provisions of Public 2010 FY 2011 IPPS proposed rule (75 FR factor has the effect of increasing the
Law 111–148, as amended (as discussed in 24013 through 24015), proposed an proposed capital Federal rate by 1.5 percent
section II.A. of the preamble of this additional 2.9 percent reduction to the compared to the FY 2010 capital Federal rate.
supplemental proposed rule). It also national capital Federal payment rate in FY The proposed GAF/DRG budget neutrality
incorporates the effects on the proposed 2011, resulting in a cumulative factor of 1.0015 has the effect of increasing
GAFs of FY 2011 geographic reclassification documentation and coding adjustment factor the proposed capital Federal rate by 0.15
decisions made by the MGCRB compared to of 0.957 for the proposed FY 2011 national percent compared to the FY 2010 capital
FY 2010 decisions. However, it does not capital Federal rate percent (that is, the Federal rate. The proposed FY 2011 outlier
account for changes in payments due to existing ¥0.6 percent adjustment in FY 2008 adjustment factor has the effect of decreasing
changes in the DSH and IME adjustment plus the ¥0.9 percent adjustment in FY 2009 the proposed capital Federal rate by 0.49
factors. plus the proposed additional ¥2.9 percent percent compared to the FY 2010 capital
adjustment, computed as 1 divided by (1.006 Federal rate. The proposed FY 2011
D. Exceptions Payment Adjustment Factor × 1.009 × 1.029). exceptions payment adjustment factor has
The provisions of Public Law 111–148, as the effect of decreasing the proposed capital
amended, have no effect on capital F. Proposed Capital Standard Federal Rate Federal rate by 0.01 percent compared to the
exceptions payments. Therefore, the special for FY 2011 FY 2010 capital Federal rate. Furthermore, as
exceptions adjustment factor remains at As a result of the proposed 1.5 percent shown in the chart below, the resulting
0.9997 as discussed in section III.A.4. of the update and other proposed budget neutrality cumulative adjustment for changes in
May 4, 2010 FY 2011 IPPS proposed rule (75 factors discussed above, we are proposing to documentation and coding that do not reflect
FR 24079). establish a national capital Federal rate of real changes in patients’ severity of illness
$422.18 for FY 2011. We are providing the (that is, the proposed cumulative adjustment
E. Prospective MS–DRG Documentation and following chart that shows how each of the factor of 0.957 has the net effect of decreasing
Coding Adjustment to the Capital Federal proposed factors and adjustments for FY the proposed FY 2011 national capital
Rates for FY 2011 and Subsequent Years 2011 affects the computation of the proposed Federal rate by 2.8 percent as compared to
The provisions of Public Law 111–148, as FY 2011 national capital Federal rate in the FY 2010 national capital Federal rate.
amended, have no effect on the proposed comparison to the FY 2010 national capital The combined effect of all the proposed
prospective documentation and coding Federal rate (revised to reflect the effect of changes would decrease the proposed
adjustment to the capital Federal rates. the provisions of the Affordable Care Act (as national capital Federal rate by
Therefore, as discussed in greater detail in discussed elsewhere in this Federal approximately 1.72 percent compared to the
section V.E. of the preamble of the May 4, Register). The proposed FY 2011 update FY 2010 national capital Federal rate.
COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2010 CAPITAL FEDERAL RATE AND PROPOSED FY 2011 CAPITAL
FEDERAL RATE
Proposed Percent
FY 2010 * Change
FY 2011 change
Update Factor 1 ........................................................................................................................ 1.0120 1.0150 1.0150 1.50

GAF/DRG Adjustment Factor 1 ................................................................................................ 0.9994 1.0015 1.0015 0.15
Outlier Adjustment Factor 2 ...................................................................................................... 0.9478 0.9432 0.9951 ¥0.49
Exceptions Adjustment Factor 2 ............................................................................................... 0.9998 0.9997 0.9999 ¥0.01
MS–DRG Documentation and Coding Adjustment Factor ...................................................... 3 0.9850 4 0.9570 5 0.9716 ¥2.84
Capital Federal Rate ................................................................................................................ $429.56 $422.18 0.9828 ¥1.72
1 The update factor and the GAF/DRG budget neutrality factors are built permanently into the capital rates. Thus, for example, the incremental
change from FY 2010 to FY 2011 resulting from the application of the proposed 1.0015 GAF/DRG budget neutrality factor for FY 2011 is a net
change of 1.0015.
2 The outlier reduction factor and the exceptions adjustment factor are not built permanently into the capital rates; that is, these factors are not
applied cumulatively in determining the capital rates. Thus, for example, the proposed net change resulting from the application of the proposed
FY 2011 outlier adjustment factor is 0.9432/0.9478, or 0.9951.
3 The documentation and coding adjustment factor includes the ¥0.6 percent in FY 2008, ¥0.9 percent in FY 2009, and no additional reduc-
tion in FY 2010.
4 The documentation and coding adjustment factor includes the ¥0.6 percent in FY 2008, ¥0.9 percent in FY 2009, no additional reduction in
FY 2010 and the proposed ¥2.9 percent reduction in FY 2011.
5 The change is measured from the FY 2009 cumulative factor of 0.9850.
* The revised FY 2010 capital Federal rate, which reflects the effect of the provisions of the Affordable Care Act (as discussed elsewhere in
this Federal Register).
G. Proposed Special Capital Rate for Puerto III. Supplemental Proposed Changes to the enacted on March 30, 2010. Although a
Rico Hospitals Payment Rates for the LTCH PPS for FY number of the provisions of Public Law 111–
2011 148 and Public Law 111–152 affect the LTCH
Using the methodology discussed in the
PPS, due to the timing of the passage of the
May 4, 2010 FY 2011 IPPS proposed rule (75 A. Proposed LTCH PPS Standard Federal
legislation, we were unable to address those
FR 24081), with the changes we are Rate for FY 2011
provisions in the May 4, 2011 FY 2011 IPPS/
proposing to make to the factors used to 1. Background LTCH PPS proposed rule. Therefore, the
determine the capital rate, the proposed FY proposed policies and payment rates in that
In section VII. of the preamble of the May
2011 special capital rate for hospitals in 4, 2011 FY 2011 proposed rule, we discuss proposed rule do not reflect the new
Puerto Rico is $199.49. (See the May 4, 2010 legislation. Below we address the provisions
our proposed changes to the payment rates,

FY 2011 IPPS proposed rule (75 FR 24015 factors, and specific policies under the LTCH of the Affordable Care Act that affect our
through 24016 and 24081) for additional PPS for FY 2011. As noted previously, on proposed policies and payment rates for FY
information on the calculation of the March 23, 2010, the Patient Protection and 2011 under the LTCH PPS. In addition, we
proposed FY 2011 capital Puerto Rico Affordable Care Act, Public Law 111–148, have issued further instructions
specific rate.) was enacted, and the Health Care and implementing the provisions of the
Education Reconciliation Act of 2010, Public Affordable Care Act, that affect the policies
Law 111–152, which amended certain and payment rates for RY 2010 under the
provisions of Public Law 111–148, was LTCH PPS. Specifically, we have established
revised RY 2010 rates and factors in a consistent with sections 1886(m)(3)(A)(ii) Federal rate that is being established in
separate notice elsewhere is this Federal and (4)(B) of the Act (that is, 1.9 percent) in accordance with the provisions of sections
Register consistent with the provisions of addition to the proposed adjustment to 1886(m)(3)(A)(ii) and (4)(A) of the Act, as
sections 1886(m)(3) and (4) of the Act and account for any changes in documentation implemented in a separate notice published
section 3401(p) of Public Law 111–148. and coding practices that do not reflect elsewhere in this Federal Register.
2. Revision of Certain Market Basket Updates increased patient severity of illness discussed Therefore, in this supplemental proposed
Incorporating the Provisions of the in section VII.C.3. of the preamble of the May rule, under the authority of sections
Affordable Care Act 4, 2010 FY 2011 IPPS/LTCH PPS proposed 1886(m)(3)(A)(ii) and (4)(B) of the Act, we are
rule (that is, 2.5 percent). proposing to amend § 412.523 to add a new
New section 1886(m)(3)(A)(ii) of the Act by paragraph (c)(3)(vii) to specify that the
specifies that for each of the rate years 2010 3. Development of the Proposed FY 2011
LTCH PPS Standard Federal Rate standard Federal rate for discharges
through 2019, any annual update to the occurring on or after October 1, 2010,
standard Federal rate, for discharges for the As discussed in the May 4, 2010 FY 2011 through September 30, 2011, is the standard
hospital for the rate year, shall be reduced by proposed rule, while we continue to believe Federal rate for the previous rate year
the other adjustment specified in new section that an update to the LTCH PPS standard updated by ¥0.59 percent. In determining
1886(m)(4) of the Act. Additionally, new Federal rate should be based on the most the proposed standard Federal rate for FY
1886(m)(3)(A)(i) of the Act provides that any recent estimate of the increase in the LTCH 2011, we are applying the proposed 0.9941
annual update to the standard Federal rate, PPS market basket, we also believe it is update factor to the RY 2010 Federal rate of
for discharges occurring during the rate year, appropriate that the standard Federal rate be $39,794.95 (as established elsewhere in this
shall be reduced for rate year 2012 and each offset by an adjustment to account for any Federal Register). Consequently, the
subsequent rate year by the productivity changes in documentation and coding proposed standard Federal rate for FY 2011
adjustment described in section practices that do not reflect increased patient is $39,560.16. We also are proposing that if
1866(b)(3)(B)(xi)(II) of the Act. Sections severity of illness. Such an adjustment more recent data become available, we would
1886(m)(3)(A)(ii) and (4)(A)–(B) require a protects the integrity of the Medicare Trust use those data, if appropriate, to determine
0.25 percentage point reduction for rate year Funds by ensuring that the LTCH PPS the update to the standard Federal rate for FY
2010 and a 0.50 percentage point reduction payment rates better reflect the true costs of 2011 in the final rule, and, thus, the standard
for rate year 2011. In addition, section treating LTCH patients. Federal rate update specified in the proposed
1886(m)(3)(B) of the Act provides that the For FY 2011, as discussed in section II.J.4. regulation text at § 412.523(c)(3)(vii) could
application of section 1886(m)(3) may result of the preamble of this proposed rule, the change accordingly.
in the annual update being less than zero for proposed market basket update under the
a rate year, and may result in payment rates LTCH PPS for FY 2011 is 1.9 percent (that B. Proposed Adjustment for LTCH PPS High-
for a rate year being less than such payment is, the most recent estimate of the LTCH PPS Cost Outlier (HCO) Cases
rates for the preceding rate year. market basket of 2.4 percent minus the 0.50 1. Background
Furthermore, section 3401(p) of Public Law percentage points required by sections
111–148 specifies that the amendments made 1886(m)(3)(A)(ii) and (4)(B) of the Act. When we implemented the LTCH PPS in
by section 3401(c) of Public Law 111–148 Furthermore, as discussed in greater detail in the FY 2003 LTCH PPS final rule, in the
shall not apply to discharges occurring before section VII.C.3. of the preamble of the May regulations at § 412.525(a), we established an
April 1, 2010. 4, 2010 FY 2011 IPPS/LTCH PPS proposed adjustment for additional payments for
We note that in the May 4, 2010 FY 2011 rule, we performed a CMI analysis using the outlier cases that have extraordinarily high
proposed rule, since the annual update to the most recent available LTCH claims data (FY costs relative to the costs of most discharges
LTCH PPS policies, rates and factors now 2009) under both the current MS–LTC–DRG (see (67 FR 56022 through 56027)). We refer
occurs on October 1st, we proposed to adopt and the former CMS LTC–DRG patient to these cases as high cost outliers (HCOs).
the term ‘‘fiscal year’’ (FY) rather than ‘‘rate classification systems. Based on this Providing additional payments for outliers
year’’ (RY) under the LTCH PPS beginning evaluation, we determined that there was a strongly improves the accuracy of the LTCH
October 1, 2010 to conform with the standard cumulative increase in LTCH CMI of 2.5 PPS in determining resource costs at the
definition of the Federal fiscal year (October percent due to changes in documentation and patient and hospital level. These additional
1 through September 30) used by other PPSs, coding that did not reflect real changes in payments reduce the financial losses that
such as the IPPS (see 75 FR 24146 through patient severity of illness for LTCH would otherwise be incurred when treating
24147). Consequently, in that proposed rule discharges occurring in FY 2008 and FY patients who require more costly care and,
and this supplemental proposed rule, for 2009. therefore, reduce the incentives to
purposes of clarity, when discussing the In this supplemental proposed rule, underserve these patients. We set the outlier
annual update for the LTCH PPS, we consistent with our historical practice, we are threshold before the beginning of the
employed ‘‘FY’’ rather than ‘‘RY’’ because it is proposing to update the LTCH PPS standard applicable rate year so that total estimated
our intent that the phrase ‘‘FY’’ be used Federal rate for FY 2011 based on the full outlier payments are projected to equal 8
prospectively in all circumstances dealing proposed LTCH PPS market basket increase percent of total estimated payments under
with the LTCH PPS. Similarly, although the estimate of 2.4 percent, adjusted by the 0.50 the LTCH PPS.
language of sections 3401(c) and 10319 of percentage point reduction required by Under § 412.525(a) in the regulations (in
Public Law 111–148, and section 1105(b) of sections 1886(m)(3)(A)(ii) and (4)(B) of the conjunction with § 412.503), we make outlier
Public Law 111–152 refers to years 2010 and Act, and an adjustment to account for the payments for any discharges if the estimated
thereafter under the LTCH PPS as ‘‘rate year,’’ increase in case-mix in a prior periods (FYs cost of a case exceeds the adjusted LTCH PPS
consistent with our proposal to change the 2008 and 2009) that resulted from changes in payment for the MS–LTC–DRG plus a fixed-
terminology used under the LTCH PPS from documentation and coding practices of ¥2.5 loss amount. Specifically, in accordance with
‘‘rate year’’ to ‘‘fiscal year,’’ for purposes of percent. Consequently, the proposed update § 412.525(a)(3) (in conjunction with
clarity, in this supplemental proposed rule, factor to the standard Federal rate for FY § 412.503), we pay outlier cases 80 percent of
when discussing the annual update for the 2011 is ¥0.59 percent (that is, we are the difference between the estimated cost of
LTCH PPS, including the provisions of the proposing to apply a factor of 0.9941 in the patient case and the outlier threshold,
Affordable Care Act, we will continue to determining the LTCH PPS standard Federal which is the sum of the adjusted Federal
employed ‘‘FY’’ rather than ‘‘RY’’ for 2011 and rate for FY 2011, calculated as 1.019 × 1 prospective payment for the MS–LTC–DRG
subsequent years because it is our intent that divided by 1.025 = 0.9941 or ¥0.59 percent and the fixed-loss amount. The fixed-loss
‘‘FY’’ be used prospectively in all (0.9941 minus 1 equals 0.59 percent)). amount is the amount used to limit the loss
circumstances dealing with the LTCH PPS. Furthermore, consistent with our historical that a hospital will incur under the outlier
The proposed FY 2011 LTCH PPS standard practice of updating the standard Federal rate policy for a case with unusually high costs.
Federal rate, discussed below in section for the previous rate year, in determining the This results in Medicare and the LTCH
III.A.3. of this supplemental proposed rule, proposed standard Federal rate for FY 2011 sharing financial risk in the treatment of
would be calculated by applying the required in this supplemental proposed rule, we are extraordinarily costly cases. Under the LTCH
0.50 percentage point reduction to the applying the proposed update factor of PPS HCO policy, the LTCH’s loss is limited
proposed FY 2011 market basket update 0.9941 to the revised RY 2010 standard to the fixed-loss amount and a fixed
percentage of costs above the outlier in order to maintain estimated HCO reasons, we believe that proposing to raise
threshold (MS–LTC–DRG payment plus the payments at the projected 8 percent of total the fixed-loss amount is appropriate and
fixed-loss amount). The fixed percentage of estimated LTCH PPS payments. (For an necessary to maintain that estimated outlier
costs is called the marginal cost factor. We explanation of our rationale for establishing payments would equal 8 percent of estimated
calculate the estimated cost of a case by an HCO payment ‘‘target’’ of 8 percent of total total LTCH PPS payments as required under
multiplying the Medicare allowable covered estimated LTCH payments, we refer readers § 412.525(a).
charge by the hospital’s overall hospital cost- to the August 30, 2002 LTCH PPS final rule As we noted in the May 4, 2010 FY 2011
to-charge ratio (CCR). (67 FR 56022 through 56024).) Consistent proposed rule (75 FR 24089), under some
Under the LTCH PPS, we determine a with our historical practice of using the best rare circumstances, a LTCH discharge could
fixed-loss amount, that is, the maximum loss data available, in determining the proposed qualify as a SSO case (as defined in the
that a LTCH can incur under the LTCH PPS fixed-loss amount for FY 2011, we use the regulations at § 412.529 in conjunction with
for a case with unusually high costs before most recent available LTCH claims data and § 412.503) and also as a HCO case. In this
the LTCH will receive any additional CCR data. Specifically, for this proposed rule, scenario, a patient could be hospitalized for
payments. We calculate the fixed-loss we used LTCH claims data from the less than five-sixths of the geometric average
amount by estimating aggregate payments December 2009 update of the FY 2009 length of stay for the specific MS–LTC–DRG,
with and without an outlier policy. The MedPAR files and CCRs from the December and yet incur extraordinarily high treatment
fixed-loss amount results in estimated total 2009 update of the PSF to determine a fixed- costs. If the costs exceeded the HCO
outlier payments being projected to be equal loss amount that would result in estimated threshold (that is, the SSO payment plus the
to 8 percent of projected total LTCH PPS outlier payments projected to be equal to 8 fixed-loss amount), the discharge is eligible
payments. Currently, MedPAR claims data percent of total estimated payments in FY for payment as a HCO. Thus, for a SSO case
and CCRs based on data from the most recent 2011 because these data are the most recent in FY 2011, the HCO payment would be 80
provider specific file (PSF) (or from the complete LTCH data currently available. (We percent of the difference between the
applicable statewide average CCR if a LTCH’s note that these are the same data used to estimated cost of the case and the outlier
CCR data are faulty or unavailable) are used determine the proposed FY 2011 fixed-loss threshold (the sum of the proposed fixed-loss
to establish a fixed-loss threshold amount amount in the May 4, 2010 FY 2011 proposed amount of $19,254 and the amount paid
under the LTCH PPS. rule.) Consistent with the historical practice under the SSO policy as specified in
As discussed previously in this section, the of using the best available data, we are § 412.529).
proposed policies and payment rates in the proposing that if more recent LTCH claims
May 4, 2011 FY 2011 proposed rule do not data become available, we will use them for C. Computing the Proposed Adjusted LTCH
reflect the provisions of the Affordable Care determining the fixed-loss amount for FY PPS Federal Prospective Payments for FY
Act that affect LTCH PPS payments. The 2011 in the final rule. Furthermore, we are 2011
revised proposed standard Federal rate for proposing to determine the proposed FY In accordance with § 412.525, the proposed
FY 2011 that was developed consistent with 2011 fixed-loss amount based on the MS– standard Federal rate is adjusted to account
the provisions of sections 1886(m)(3)(A)(ii) LTC–DRG classifications and relative weights for differences in area wages by multiplying
and (4)(B) of the Act is discussed above in from the version of the GROUPER that will the proposed labor-related share of the
section III.A.3. of the Addendum of this be in effect as of the beginning of FY 2011, proposed standard Federal rate by the
supplemental proposed rule. This revision to that is, proposed Version 28.0 of the appropriate proposed LTCH PPS wage index
the proposed standard Federal rate for FY GROUPER (discussed in section VII.D. of the (as shown in Tables 12A and 12B of the
2011 requires us to revise the proposed high preamble of this supplemental proposed Addendum of this proposed rule). The
cost outlier fixed-loss amount for FY 2011. rule). proposed standard Federal rate is also
This is necessary in order to maintain the In this proposed rule, we are proposing to adjusted to account for the higher costs of
requirement that the fixed-loss amount establish a fixed-loss amount of $19,254 for hospitals in Alaska and Hawaii by
results in estimated total outlier payments FY 2011. Thus, we would pay an outlier case multiplying the proposed nonlabor-related
being projected to be equal to 8 percent of 80 percent of the difference between the share of the proposed standard Federal rate
projected total LTCH PPS payments. estimated cost of the case and the outlier by the appropriate cost-of-living factor
2. The Proposed LTCH PPS Fixed-Loss threshold (the sum of the adjusted Federal (shown in the chart in section V.C.5. of the
Amount for FY 2011 LTCH payment for the MS–LTC–DRG and the Addendum of the May 4, 2010 FY 2011 IPPS/
When we implemented the LTCH PPS, as fixed-loss amount of $19,254). LTCH PPS proposed rule). In this proposed
discussed in the August 30, 2002 LTCH PPS The proposed fixed-loss amount for FY rule, we are proposing to establish a standard
final rule (67 FR 56022 through 56026), we 2011 of $19,254 is slightly higher than the Federal rate for FY 2011 of $39,560.16, as
established a fixed-loss amount so that total revised RY 2010 fixed-loss amount of discussed in section V.A.3. of the Addendum
estimated outlier payments are projected to $18,615 (established elsewhere in this of this supplemental proposed rule. We
equal 8 percent of total estimated payments Federal Register). Based on our payment illustrate the methodology to adjust the
under the LTCH PPS. To determine the fixed- simulations using the most recent available proposed LTCH PPS Federal rate for FY 2011
loss amount, we estimate outlier payments data and the proposed 0.59 percent reduction in the following example:
and total LTCH PPS payments for each case to the standard Federal rate for FY 2011, the Example: During FY 2011, a Medicare
using claims data from the MedPAR files. proposed increase in the fixed-loss amount patient is in a LTCH located in Chicago,
Specifically, to determine the outlier for FY 2011 would be necessary to maintain Illinois (CBSA 16974). The proposed FY 2011
payment for each case, we estimate the cost the existing requirement that estimated LTCH PPS wage index value for CBSA 16974
of the case by multiplying the Medicare outlier payments would equal 8 percent of is 1.0573 (Table 12A of the Addendum of this
covered charges from the claim by the estimated total LTCH PPS payments. (For proposed rule). The Medicare patient is
applicable CCR. Under § 412.525(a)(3) (in further information on and our rationale for classified into MS–LTC–DRG 28 (Spinal
conjunction with § 412.503), if the estimated the existing 8 percent HCO ‘‘target’’ Procedures with MCC), which has a proposed
cost of the case exceeds the outlier threshold requirement, we refer readers to the August relative weight for FY 2011 of 1.0834 (Table
(the sum of the adjusted Federal prospective 30, 2002 LTCH PPS final rule (67 FR 56022 11 of the Addendum of this supplemental
payment for the MS–LTC–DRG and the fixed- through 56024.) Maintaining the fixed-loss proposed rule).
loss amount), we pay an outlier payment amount at the current level would result in To calculate the LTCH’s total adjusted
equal to 80 percent of the difference between HCO payments that are greater than the Federal prospective payment for this
the estimated cost of the case and the outlier current 8 percent regulatory requirement Medicare patient, we compute the wage-
threshold (the sum of the adjusted Federal because a higher fixed-loss amount would adjusted proposed Federal prospective
prospective payment for the MS–LTC–DRG result in fewer cases qualifying as outlier payment amount by multiplying the
and the fixed-loss amount). cases as well as decreases the amount of the unadjusted proposed standard Federal rate
As discussed in the May 4, 2010 FY 2011 additional payment for a HCO case because ($39,560.16) by the proposed labor-related
proposed rule, we are proposing to continue the maximum loss that a LTCH must incur share (75.407 percent) and the proposed
to use our existing methodology to calculate before receiving an HCO payment (that is, the wage index value (1.0573). This wage-
the proposed fixed-loss amount for FY 2011 fixed-loss amount) would be larger. For these adjusted amount is then added to the
proposed nonlabor-related portion of the proposed Federal rate, which is then prospective payment for FY 2011
unadjusted proposed standard Federal rate multiplied by the proposed MS–LTC–DRG ($45,046.57). The table below illustrates the
(24.593 percent; adjusted for cost of living, if relative weight (1.0834) to calculate the total components of the calculations in this
applicable) to determine the adjusted adjusted proposed Federal LTCH PPS example.
Unadjusted Proposed Standard Federal Prospective Payment Rate ................................................................................. $39,560.16

Proposed Labor-Related Share ........................................................................................................................................... × 0.75407
Labor-Related Portion of the Proposed Federal Rate ........................................................................................................ = $29,831.13
Proposed Wage Index (CBSA 16974) ................................................................................................................................ × 1.0573
Proposed Wage-Adjusted Labor Share of Federal Rate .................................................................................................... = $31,540.45
Proposed Nonlabor-Related Portion of the Federal Rate ($39,560.16 × 0.24593) ............................................................ + $9,729.03
Adjusted Proposed Federal Rate Amount ........................................................................................................................... = $41,269.48
Proposed MS–LTC–DRG 28 Relative Weight .................................................................................................................... × 1.0834
Total Adjusted Federal Prospective Payment .............................................................................................................. = $44,711.36
IV. Tables Table 1E.—Supplemental Proposed LTCH Table 4D–2.—Urban Areas with Acute Care
This section contains the tables referred to Standard Federal Prospective Payment Hospitals Receiving the Statewide Rural
Rate. Floor or Imputed Floor Wage Index—FY
throughout the preamble to this proposed
Table 2.—Acute Care Hospitals Case-Mix 2011.
rule and in this Addendum. Tables 1A, 1B, Table 4J.—Proposed Out-Migration
Indexes for Discharges Occurring in
1C, 1D, 1E, 2, 4A, 4B, 4C, 4D–2, 4J, 9A, 10, Federal Fiscal Year 2009; Proposed Adjustment for Acute Care Hospitals—FY
and 11 are presented below. The tables Hospital Wage Indexes for Federal Fiscal 2011.
presented below are as follows: Year 2011; Hospital Average Hourly Wages Table 9A.—Hospital Reclassifications and
Table 1A.—Supplemental Proposed National for Federal Fiscal Years 2009 (2005 Wage Redesignations—FY 2011.
Adjusted Operating Standardized Data), 2010 (2006 Wage Data), and 2011 Table 10.—Geometric Mean Plus the Lesser
Amounts, Labor/Nonlabor (68.8 Percent (2007 Wage Data); and 3-Year Average of of .75 of the National Adjusted Operating
Labor Share/31.2 Percent Nonlabor Share If Hospital Average Hourly Wages. Standardized Payment Amount (Increased
Wage Index Is Greater Than 1). Table 4A.—Proposed Wage Index and Capital to Reflect the Difference Between Costs and
Geographic Adjustment Factor (GAF) for Charges) or .75 of One Standard Deviation
Table 1B.—Supplemental Proposed National
Acute Care Hospitals in Urban Areas by of Mean Charges by Medicare Severity
Adjusted Operating Standardized Diagnosis-Related Group (MS–DRG)—April
CBSA and by State—FY 2011.
Amounts, Labor/Nonlabor (62 Percent 2010.
Table 4B.—Proposed Wage Index and Capital
Labor Share/38 Percent Nonlabor Share If Geographic Adjustment Factor (GAF) for Table 11.—Supplemental Proposed MS–
Wage Index Is Less Than or Equal To 1). Acute Care Hospitals in Rural Areas by LTC–DRGs, Relative Weights, Geometric
Table 1C.—Supplemental Proposed Adjusted CBSA and by State—FY 2011. Average Length of Stay, and Short-Stay
Operating Standardized Amounts for Table 4C.—Proposed Wage Index and Capital Outlier (SSO) Threshold for Discharges
Puerto Rico, Labor/Nonlabor. Geographic Adjustment Factor (GAF) for Occurring from October 1, 2010 through
Table 1D.—Supplemental Proposed Capital Acute Care Hospitals That Are Reclassified September 30, 2011 under the LTCH PPS.
Standard Federal Payment Rate. by CBSA and by State—FY 2011. BILLING CODE 4120–01–P
EP02JN10.031</GPH>
EP02JN10.032</GPH>
EP02JN10.033</GPH>
EP02JN10.034</GPH>
EP02JN10.035</GPH>
EP02JN10.036</GPH>
EP02JN10.037</GPH>
EP02JN10.038</GPH>
EP02JN10.039</GPH>
EP02JN10.040</GPH>
EP02JN10.041</GPH>
EP02JN10.042</GPH>
EP02JN10.043</GPH>
EP02JN10.044</GPH>
EP02JN10.045</GPH>
EP02JN10.046</GPH>
EP02JN10.047</GPH>
EP02JN10.048</GPH>
EP02JN10.049</GPH>
EP02JN10.050</GPH>
EP02JN10.051</GPH>
EP02JN10.052</GPH>
EP02JN10.053</GPH>
EP02JN10.054</GPH>
EP02JN10.055</GPH>
EP02JN10.056</GPH>
EP02JN10.057</GPH>
EP02JN10.058</GPH>
EP02JN10.059</GPH>
EP02JN10.060</GPH>
EP02JN10.061</GPH>
EP02JN10.062</GPH>
EP02JN10.063</GPH>
EP02JN10.064</GPH>
EP02JN10.065</GPH>
EP02JN10.066</GPH>
EP02JN10.067</GPH>
EP02JN10.068</GPH>
EP02JN10.069</GPH>
EP02JN10.070</GPH>
EP02JN10.071</GPH>
EP02JN10.072</GPH>
EP02JN10.073</GPH>
EP02JN10.074</GPH>
EP02JN10.075</GPH>
EP02JN10.076</GPH>
EP02JN10.077</GPH>
EP02JN10.078</GPH>
EP02JN10.079</GPH>
EP02JN10.080</GPH>
EP02JN10.081</GPH>
EP02JN10.082</GPH>
EP02JN10.083</GPH>
EP02JN10.084</GPH>
EP02JN10.085</GPH>
EP02JN10.086</GPH>
EP02JN10.087</GPH>
EP02JN10.088</GPH>
EP02JN10.089</GPH>
EP02JN10.090</GPH>
EP02JN10.091</GPH>
EP02JN10.092</GPH>
EP02JN10.093</GPH>
EP02JN10.094</GPH>
EP02JN10.095</GPH>
EP02JN10.096</GPH>
EP02JN10.097</GPH>
EP02JN10.098</GPH>
EP02JN10.099</GPH>
EP02JN10.100</GPH>
EP02JN10.101</GPH>
EP02JN10.102</GPH>
EP02JN10.103</GPH>
EP02JN10.104</GPH>
EP02JN10.105</GPH>
EP02JN10.106</GPH>
EP02JN10.107</GPH>
EP02JN10.108</GPH>
EP02JN10.109</GPH>
EP02JN10.110</GPH>
EP02JN10.111</GPH>
EP02JN10.112</GPH>
EP02JN10.113</GPH>
EP02JN10.114</GPH>
EP02JN10.115</GPH>
EP02JN10.116</GPH>
EP02JN10.117</GPH>
EP02JN10.118</GPH>
EP02JN10.119</GPH>
EP02JN10.120</GPH>
EP02JN10.121</GPH>
EP02JN10.122</GPH>
EP02JN10.123</GPH>
EP02JN10.124</GPH>
EP02JN10.125</GPH>
EP02JN10.126</GPH>
EP02JN10.127</GPH>
EP02JN10.128</GPH>
EP02JN10.129</GPH>
EP02JN10.130</GPH>
EP02JN10.131</GPH>
EP02JN10.132</GPH>
EP02JN10.133</GPH>
EP02JN10.134</GPH>
EP02JN10.135</GPH>
EP02JN10.136</GPH>
EP02JN10.137</GPH>
EP02JN10.138</GPH>
EP02JN10.139</GPH>

EP02JN10.140</GPH>
Appendix: Regulatory Impact Analysis organizations or by meeting the Small proposed policy changes under the IPPS for
Business Administration definition of a small operating costs.)
I. Overall Impact business (having revenues of $34.5 million or Section 202 of the Unfunded Mandates
We have examined the impacts of this less in any 1 year). (For details on the latest Reform Act of 1995 (Pub. L. 104–4) also
proposed rule as required by Executive Order standards for health care providers, we refer requires that agencies assess anticipated costs
12866 (September 1993, Regulatory Planning readers to the Table of Small Business Size and benefits before issuing any rule whose
and Review) and the Regulatory Flexibility Standards for NAIC 622 found on the Small mandates require spending in any 1 year of
Act (RFA) (September 19, 1980, Pub. L. 96– Business Administration Office of Size $100 million in 1995 dollars, updated
354), section 1102(b) of the Social Security Standards Web site at: http://www.sba.gov/ annually for inflation. That threshold level is
Act, the Unfunded Mandates Reform Act of contractingopportunities/officials/size/GC- currently approximately $133 million. This
1995 (Pub. L. 104–4), Executive Order 13132 SMALL-BUS-SIZE-STANDARDS.html.) For proposed rule would not mandate any
on Federalism, and the Congressional Review purposes of the RFA, all hospitals and other requirements for State, local, or Tribal
Act (5 U.S.C. 804(2)). providers and suppliers are considered to be governments, nor would it affect private
Executive Order 12866 directs agencies to small entities. Individuals and States are not sector costs.
assess all costs and benefits of available included in the definition of a small entity. Executive Order 13132 establishes certain
regulatory alternatives and, if regulation is We believe that the provisions of this requirements that an agency must meet when
necessary, to select regulatory approaches proposed rule relating to acute care hospitals it promulgates a proposed rule (and
that maximize net benefits (including would have a significant impact on small subsequent final rule) that imposes
potential economic, environmental, public entities as explained in this Appendix. substantial direct requirement costs on State
health and safety effects, distributive Because we lack data on individual hospital and local governments, preempts State law,
impacts, and equity). A regulatory impact receipts, we cannot determine the number of or otherwise has Federalism implications. As
analysis (RIA) must be prepared for major small proprietary LTCHs. Therefore, we are stated above, this proposed rule would not
rules with economically significant effects assuming that all LTCHs are considered have a substantial effect on State and local
($100 million or more in any 1 year). small entities for the purpose of the analysis governments.
We have determined that this proposed in section IX. of this Appendix. Medicare The following analysis, in conjunction
rule is a major rule as defined in 5 U.S.C. fiscal intermediaries and MACs are not with the remainder of this document,
804(2). We estimate that the proposed considered to be small entities. Because we demonstrates that this proposed rule is
changes for FY 2011 acute care hospital acknowledge that many of the affected consistent with the regulatory philosophy
operating and capital payments will entities are small entities, the analysis and principles identified in Executive Order
redistribute in excess of $100 million among discussed throughout the preamble of this 12866, the RFA, and section 1102(b) of the
different types of inpatient cases. The proposed rule constitutes our proposed Act. The proposed rule would affect
proposed applicable percentage increase to regulatory flexibility analysis. Therefore, we payments to a substantial number of small
the IPPS rates required by the statute, in are soliciting public comments on our rural hospitals, as well as other classes of
conjunction with other proposed payment estimates and analysis of the impact of this hospitals, and the effects on some hospitals
changes in this proposed rule, would result proposed rule on those small entities. may be significant.
in an estimated $929 million decrease in FY The Small Business Regulatory II. Objectives of the IPPS
2011 operating payments (or ¥0.9 percent Enforcement Fairness Act of 1996 (SBREFA),
increase), and an estimated $20 million Public Law 104–121, as amended by section The primary objective of the IPPS is to
decrease in FY 2011 capital payments (or 8302 of Public Law 110–28, requires an create incentives for hospitals to operate
¥0.2 percent change). The impact analysis of agency to provide compliance guides for each efficiently and minimize unnecessary costs
the capital payments can be found in section rule or group of related rules for which an while at the same time ensuring that
VIII. of this Appendix. In addition, as agency is required to prepare a final payments are sufficient to adequately
described in section IX. of this Appendix, regulatory flexibility analysis. The compensate hospitals for their legitimate
LTCHs are expected to experience an costs. In addition, we share national goals of
compliance guides associated with this
preserving the Medicare Hospital Insurance
increase in payments by $12.9 million (or 0.3 proposed rule are available on the CMS IPPS
Trust Fund.
percent). Web page at http://www.cms.hhs.gov/
We believe the proposed changes in this
Our operating impact estimate includes the AcuteInpatientPPS/01_overview.asp. We also
proposed rule would further each of these
proposed ¥2.9 percent documentation and note that the Hospital Center Web page at
goals while maintaining the financial
coding adjustment applied to the hospital- http://www.cms.hhs.gov/center/hospital.asp
viability of the hospital industry and
specific rates, the proposed ¥2.4 percent was developed to assist hospitals in
ensuring access to high quality health care
documentation and coding adjustment understanding and adapting to changes in
for Medicare beneficiaries. We expect that
applied to the Puerto Rico-specific rates and Medicare regulations and in billing and
these proposed changes would ensure that
the proposed ¥2.9 percent adjustment for payment procedures. This Web page provides the outcomes of the prospective payment
documentation and coding changes to the hospitals with substantial downloadable systems are reasonable and equitable while
IPPS standardized amounts, which was explanatory materials. avoiding or minimizing unintended adverse
discussed in the May 4, 2010 FY 2011 IPPS/ In addition, section 1102(b) of the Act consequences.
LTCH PPS proposed rule (75 FR 24288). In requires us to prepare a regulatory impact
addition, our operating impact estimate analysis for any proposed or final rule that III. Limitations of Our Analysis
includes the proposed 2.15 percent market may have a significant impact on the The following quantitative analysis
basket update to the standardized amount operations of a substantial number of small presents the projected effects of our proposed
(which includes the proposed 2.4 percent rural hospitals. This analysis must conform policy changes, as well as statutory changes
update with the 0.25 reduction required to the provisions of section 603 of the RFA. effective for FY 2011, on various hospital
under the Affordable Care Act). The With the exception of hospitals located in groups. We estimate the effects of individual
estimates of IPPS operating payments to certain New England counties, for purposes policy changes by estimating payments per
acute care hospitals do not reflect any of section 1102(b) of the Act, we now define case while holding all other payment policies
changes in hospital admissions or real case- a small rural hospital as a hospital that is constant. We use the best data available, but,
mix intensity, which would also affect located outside of an urban area and has generally, we do not attempt to make
overall payment changes. fewer than 100 beds. Section 601(g) of the adjustments for future changes in such
The RFA requires agencies to analyze Social Security Amendments of 1983 (Pub. L. variables as admissions, lengths of stay, or
options for regulatory relief of small 98–21) designated hospitals in certain New case-mix.
businesses. For purposes of the RFA, small England counties as belonging to the adjacent
entities include small businesses, nonprofit urban area. Thus, for purposes of the IPPS IV. Hospitals Included in and Excluded
organizations, and small government and the LTCH PPS, we continue to classify From the IPPS
jurisdictions. Most hospitals and most other these hospitals as urban hospitals. (We refer The prospective payment systems for
providers and suppliers are considered to be readers to Table 1 and section VI. of this hospital inpatient operating and capital-
small entities, either by being nonprofit Appendix for the quantitative effects of the related costs of acute care hospitals
encompass most general short-term, acute revised and rebased FY 2006-based IPPS This amount reflects the proposed FY 2011
care hospitals that participate in the operating and capital market baskets. documentation and coding adjustments
Medicare program. There were 33 Indian Therefore, consistent with current law, based described in the May 4, 2010 FY 2011 IPPS/
Health Service hospitals in our database, on IHS Global Insight, Inc.’s 2010 first LTCH PPS proposed rule: ¥2.9 percent for
which we excluded from the analysis due to quarter forecast, with historical data through the IPPS national standardized amounts,
the special characteristics of the prospective the 2009 fourth quarter, we are estimating ¥2.9 percent for the IPPS hospital-specific
payment methodology for these hospitals. that the proposed FY 2011 update to the IPPS rates, and ¥2.4 percent for the IPPS Puerto
Among other short-term, acute care hospitals, operating market basket would be 2.4 percent Rico-specific standardized amount. The
only the 46 such hospitals in Maryland (that is, the current estimate of the market impacts do not illustrate changes in hospital
remain excluded from the IPPS pursuant to basket rate-of-increase) which was included admissions or real case-mix intensity, which
the waiver under section 1814(b)(3) of the in the May 4, 2010 FY 2011 IPPS/LTCH PPS will also affect overall payment changes.
Act. proposed rule. However, the Affordable Care We have prepared separate impact analyses
As of March 2010, there are 3,472 IPPS Act requires a 0.25 reduction to the market of the proposed changes to each system. This
acute care hospitals to be included in our basket update resulting in a proposed 2.15 section deals with changes to the operating
analysis. This represents about 64 percent of percent applicable percentage increase for prospective payment system for acute care
all Medicare-participating hospitals. The IPPS hospitals. RNCHIs, children’s hospitals hospitals. Our payment simulation model
majority of this impact analysis focuses on and cancer hospitals are not subject to the relies on the most recent available data to
this set of hospitals. There are also reduction in the applicable percentage enable us to estimate the impacts on
approximately 1,338 CAHs. These small, increase required under the Affordable Care payments per case of certain proposed
limited service hospitals are paid on the basis Act. In accordance with § 403.752(a) of the changes in this proposed rule. However,
of reasonable costs rather than under the regulations, RNHCIs are paid under § 413.40. there are other proposed changes for which
IPPS. (We refer readers to section VII. of this Therefore, for RNHCIs, the proposed update we do not have data available that would
Appendix for a further description of the is the same as for children’s and cancer allow us to estimate the payment impacts
impact of CAH-related proposed policy hospitals, which is the percentage increase in using this model. For those proposed
changes.) There are also 1,270 IPPS-excluded the FY 2011 IPPS operating market basket changes, we have attempted to predict the
hospitals and 2,169 IPPS-excluded hospital increase (which was included in the May 4, payment impacts based upon our experience
2010 FY 2011 IPPS/LTCH PPS proposed rule) and other more limited data.
units. These IPPS-excluded hospitals and
without the reductions required under the The data used in developing the
units include IPFs, IRFs, LTCHs, RNHCIs,
Affordable Care Act, estimated to be 2.4 quantitative analyses of changes in payments
children’s hospitals, and cancer hospitals,
percent. per case presented below are taken from the
which are paid under separate payment
The impact of the proposed update in the FY 2009 MedPAR file and the most current
systems. Changes in the prospective payment Provider-Specific File that is used for
systems for IPFs and IRFs are made through rate-of-increase limit on those excluded
hospitals depends on the cumulative cost payment purposes. Although the analyses of
separate rulemaking. Payment impacts for the proposed changes to the operating PPS do
these IPPS-excluded hospitals and units are increases experienced by each excluded
hospital since its applicable base period. For not incorporate cost data, data from the most
not included in this proposed rule. The recently available hospital cost report were
impact of the proposed update and policy excluded hospitals that have maintained
their cost increases at a level below the rate- used to categorize hospitals. Our analysis has
changes to the LTCH PPS for FY 2011 are several qualifications. First, in this analysis,
discussed in section IX. of this Appendix. of-increase limits since their base period, the
major effect is on the level of incentive we do not make adjustments for future
V. Effects on Hospitals and Hospital Units payments these excluded hospitals receive. changes in such variables as admissions,
Excluded From the IPPS Conversely, for excluded hospitals with per- lengths of stay, or underlying growth in real
case cost increases above the cumulative case-mix. Second, due to the interdependent
As of March 2010, there were 3,439 nature of the IPPS payment components, it is
hospitals and hospital units excluded from update in their rate-of-increase limits, the
major effect is the amount of excess costs that very difficult to precisely quantify the impact
the IPPS. Of these, 78 children’s hospitals, 11 associated with each change. Third, we use
cancer hospitals, and 17 RNHCIs are being will not be reimbursed.
We note that, under § 413.40(d)(3), an various sources for the data used to
paid on a reasonable cost basis subject to the categorize hospitals in the tables. In some
rate-of-increase ceiling under § 413.40. The excluded hospital that continues to be paid
under the TEFRA system, whose costs exceed cases, particularly the number of beds, there
remaining providers, 228 rehabilitation is a fair degree of variation in the data from
hospitals and 961 rehabilitation units, and 110 percent of its rate-of-increase limit
receives its rate-of-increase limit plus 50 different sources. We have attempted to
429 LTCHs, are paid the Federal prospective construct these variables with the best
per discharge rate under the IRF PPS and the percent of the difference between its
reasonable costs and 110 percent of the limit, available source overall. However, for
LTCH PPS, respectively, and 507 psychiatric individual hospitals, some
hospitals and 1,208 psychiatric units are paid not to exceed 110 percent of its limit. In
addition, under the various provisions set miscategorizations are possible.
the Federal per diem amount under the IPF Using cases from the FY 2009 MedPAR
PPS. As stated above, IRFs and IPFs are not forth in § 413.40, cancer and children’s
hospitals can obtain payment adjustments for file, we simulated payments under the
affected by rate updates discussed in this operating IPPS given various combinations of
proposed rule. The impacts of the changes to justifiable increases in operating costs that
exceed the limit. payment parameters. Any short-term, acute
LTCHs are discussed in section IX. of this care hospitals not paid under the IPPS
Appendix. VI. Quantitative Effects of the Policy (Indian Health Service hospitals and
In the past, certain hospitals and units Changes Under the IPPS for Operating Costs hospitals in Maryland) were excluded from
excluded from the IPPS have been paid based the simulations. The impact of payments
on their reasonable costs subject to limits as A. Basis and Methodology of Estimates
under the capital IPPS, or the impact of
established by the Tax Equity and Fiscal In this proposed rule, we are announcing payments for costs other than inpatient
Responsibility Act of 1982 (TEFRA). Cancer proposed policy changes and payment rate operating costs, are not analyzed in this
and children’s hospitals continue to be paid updates for the IPPS for operating costs of section. Estimated payment impacts of the
on a reasonable cost basis subject to TEFRA acute care hospitals. Updates to the capital capital IPPS for FY 2011 are discussed in
limits for FY 2011. For these hospitals payments to acute care hospitals are section VIII. of this Appendix.
(cancer and children’s hospitals), consistent discussed in section VIII. of this Appendix. The changes discussed separately below
with the authority provided in section Based on the overall percentage change in are the following:
1886(b)(3)(B)(ii) of the Act, the update is the payments per case estimated using our • The effects of the proposed annual
percentage increase in the FY 2011 IPPS payment simulation model, we estimate that reclassification of diagnoses and procedures,
operating market basket. In compliance with total FY 2011 operating payments would full implementation of the MS–DRG system
section 404 of the MMA, in the FY 2010 decrease by 0.9 percent compared to FY and 100 percent cost-based MS–DRG relative
IPPS/RY 2010 LTCH PPS final rule (74 FR 2010, largely due to the documentation and weights.
43930), we replaced the FY 2002-based IPPS coding adjustments and the applicable • The effects of the proposed changes in
operating and capital market baskets with the percentage increase applied to the IPPS rates. hospitals’ wage index values reflecting wage
data from hospitals’ cost reporting periods finally arriving at an FY 2011 model further divided into large urban and other
beginning during FY 2007, compared to the incorporating all of the changes. This urban; and rural. There are 2,502 hospitals
FY 2006 wage data. simulation allows us to isolate the effects of located in urban areas included in our
• The effects of the recalibration of the each proposed change. analysis. Among these, there are 1,365
MS–DRG relative weights as required by Our final comparison illustrates the hospitals located in large urban areas
section 1886(d)(4)(C) of the Act, including proposed percent change in payments per (populations over 1 million), and 1,137
the proposed wage and recalibration budget case from FY 2010 to FY 2011. Three factors hospitals in other urban areas (populations of
neutrality factors. not discussed separately have significant 1 million or fewer). In addition, there are 970
• The effects of geographic impacts here. The first factor is the update to hospitals in rural areas. The next two
reclassifications by the MGCRB that will be the standardized amount. In accordance with groupings are by bed-size categories, shown
effective in FY 2011. section 1886(b)(3)(B)(i) of the Act, we are separately for urban and rural hospitals. The
• The effects of the Frontier wage index proposing to update the standardized
final groupings by geographic location are by
provision that requires that hospitals located amounts for FY 2011 using an applicable
census divisions, also shown separately for
in States that qualify as frontier States cannot percentage increase of 2.15 percent. In
urban and rural hospitals.
have a wage index less than 1.0. This is a addition, we are updating the Puerto Rico
The second part of Table I shows hospital
nonbudget neutral provision. specific amount by an applicable percentage
increase of 2.15 percent. This includes our groups based on hospitals’ FY 2011 payment
• The effects of the rural floor and imputed classifications, including any
floor with a national budget neutrality forecasted hospital market basket increase of
2.4 percent with a 0.25 percentage reduction reclassifications under section 1886(d)(10) of
applied to the wage index, as required by the the Act. For example, the rows labeled urban,
Affordable Care Act the Affordable Care Act. as required under the Affordable Care Act.
(Hospitals that fail to comply with the quality large urban, other urban, and rural show that
• The effects of section 505 of Public Law the numbers of hospitals paid based on these
108–173, which provides for an increase in data submission requirements to receive the
full update will receive an update reduced by categorizations after consideration of
a hospital’s wage index if the hospital geographic reclassifications (including
qualifies by meeting a threshold percentage 2.0 percentage points from 2.15 percent to
0.15 percent.) Under section 1886(b)(3)(B)(iv) reclassifications under sections 1886(d)(8)(B)
of residents of the county where the hospital and 1886(d)(8)(E) of the Act that have
is located who commute to work at hospitals of the Act, the updates to the hospital-
specific amounts for SCHs and for MDHs are implications for capital payments) are 2,555;
in counties with higher wage indexes. 1,403; 1,152; and 917, respectively.
• The total estimated change in payments also equal to the market basket percentage
increase, or 2.15 percent. The next three groupings examine the
based on the proposed FY 2011 policies impacts of the changes on hospitals grouped
relative to payments based on FY 2010 A second significant factor that affects the
changes in hospitals’ payments per case from by whether or not they have GME residency
policies that include the applicable
FY 2010 to FY 2011 is the change in a programs (teaching hospitals that receive an
percentage increase of 2.15 (or 2.4 percent
hospital’s geographic reclassification status IME adjustment) or receive DSH payments, or
market basket with a 0.25 percentage
from one year to the next. That is, payments some combination of these two adjustments.
reduction, as required under the Affordable
may be reduced for hospitals reclassified in There are 2,434 nonteaching hospitals in our
Care Act). The FY 2010 operating payments
FY 2010 that are no longer reclassified in FY analysis, 798 teaching hospitals with fewer
also account for provisions under the
2011. Conversely, payments may increase for than 100 residents, and 240 teaching
Affordable Care Act that were effective for FY
hospitals not reclassified in FY 2010 that are hospitals with 100 or more residents.
2010.
reclassified in FY 2011. In the DSH categories, hospitals are
To illustrate the impacts of the proposed
A third significant factor is that we grouped according to their DSH payment
FY 2011 changes, our analysis begins with a
currently estimate that actual outlier status, and whether they are considered
FY 2010 baseline simulation model using: payments during FY 2010 will be 4.9 percent
the proposed FY 2011 applicable percentage urban or rural for DSH purposes. The next
of total MS–DRG payments. Our FY 2010 category groups together hospitals considered
increase of 2.15 percent; the FY 2010 MS– outlier estimate accounts for changes to the
DRG GROUPER (Version 27.0); the most urban or rural, in terms of whether they
FY 2010 IPPS payments required under the receive the IME adjustment, the DSH
current CBSA designations for hospitals Affordable Care Act. When the FY 2010 final
based on OMB’s MSA definitions; the FY adjustment, both, or neither.
rule was published, we projected FY 2010 The next five rows examine the impacts of
2010 wage index; and no MGCRB outlier payments would be 5.1 percent of
reclassifications. Outlier payments are set at the changes on rural hospitals by special
total MS–DRG plus outlier payments; the payment groups (SCHs, RRCs, and MDHs).
5.1 percent of total operating MS–DRG and average standardized amounts were offset
outlier payments. There were 183 RRCs, 340 SCHs, 187 MDHs,
correspondingly. The effects of the lower and 108 hospitals that are both SCHs and
Section 1886(b)(3)(B)(viii) of the Act, as than expected outlier payments during FY
added by section 5001(a) of Public Law 109– RRCs, and 13 hospitals that are both an MDH
2010 (as discussed in the Addendum to this and an RRC.
171, provides that, for FY 2007 and proposed rule) are reflected in the analyses
subsequent years, the update factor will be The next series of groupings are based on
below comparing our current estimates of FY the type of ownership and the hospital’s
reduced by 2.0 percentage points for any 2010 payments per case to estimated FY 2011
hospital that does not submit quality data in Medicare utilization expressed as a percent
payments per case (with outlier payments
a form and manner and at a time specified of total patient days. These data were taken
projected to equal 5.1 percent of total MS–
by the Secretary. At the time that this impact from the FY 2008 or FY 2007 Medicare cost
DRG payments).
was prepared, 104 hospitals did not receive reports.
the full market basket rate-of-increase for FY B. Analysis of Table I The next two groupings concern the
2010 because they failed the quality data Table I displays the results of our analysis geographic reclassification status of
submission process or did not choose to of the proposed changes for FY 2011. The hospitals. The first grouping displays all
participate. For purposes of the simulations table categorizes hospitals by various urban hospitals that were reclassified by the
shown below, we modeled the proposed geographic and special payment MGCRB for FY 2011. The second grouping
payment changes for FY 2011 using a consideration groups to illustrate the varying shows the MGCRB rural reclassifications.
reduced update for these 104 hospitals. impacts on different types of hospitals. The These groupings account for the change in
However, we do not have enough top row of the table shows the overall impact the MGCRB reclassification policy as
information at this time to determine which on the 3,472 acute care hospitals included in required under the Affordable Care Act.
hospitals will not receive the full market the analysis. The final category shows the impact of the
basket rate-of-increase for FY 2011. The next four rows of Table I contain proposed policy changes on the 19 cardiac
Each policy change, statutory or otherwise, hospitals categorized according to their hospitals in our analysis.
is then added incrementally to this baseline, geographic location: all urban, which is BILLING CODE 4120–01–P
EP02JN10.141</GPH>
EP02JN10.142</GPH>
EP02JN10.143</GPH>
EP02JN10.144</GPH>
EP02JN10.145</GPH>

EP02JN10.146</GPH>
C. Effects of the Proposed Changes to the acute care hospitals for FY 2011 is based on cannot increase or decrease aggregate
MS–DRG Reclassifications and Relative Cost- data submitted for hospital cost reporting payments. In addition, section 1886(d)(3)(E)
Based Weights (Column 1) periods beginning on or after October 1, 2006 of the Act specifies that any updates or
In Column 1 of Table I, we present the and before October 1, 2007. The estimated adjustments to the wage index are to be
effects of the proposed MS–DRG impact of the updated wage data on hospital budget neutral. We computed a proposed
reclassifications, as discussed in section II. of payments is isolated in Column 3 by holding wage budget neutrality factor of 1.00007, and
the preamble to this supplemental proposed the other payment parameters constant in a proposed recalibration budget neutrality
rule. Section 1886(d)(4)(C)(i) of the Act this simulation. That is, Column 3 shows the factor of 0.996867 (which is applied to the
requires us annually to make appropriate percentage change in payments when going Puerto Rico specific standardized amount
classification changes in order to reflect from a model using the FY 2010 wage index, and the hospital-specific rates). The product
changes in treatment patterns, technology, based on FY 2006 wage data, and having a of the two budget neutrality factors is the
and any other factors that may change the 100-percent occupational mix adjustment cumulative wage and recalibration budget
relative use of hospital resources. applied, to a model using the FY 2011 pre- neutrality factor. The proposed cumulative
As discussed in the preamble of the May reclassification wage index, also having a wage and recalibration budget neutrality
4, 2010 FY 2011 IPPS/LTCH PPS proposed 100-percent occupational mix adjustment adjustment is 0.996937, or approximately
rule, the proposed FY 2011 MS–DRG relative applied, based on FY 2007 wage data (while ¥0.3 percent, which is applied to the
weights will be 100 percent cost-based and holding other payment parameters such as national standardized amounts. Because the
100 percent MS–DRGs. For FY 2011, the MS– use of the Version 28.0 MS–DRG GROUPER wage budget neutrality and the recalibration
DRGs are calculated using the FY 2009 constant). The occupational mix adjustment budget neutrality are calculated under
MedPAR data grouped to the Version 28.0 is based on the FY 2008/2009 occupational different methodologies according to the
(FY 2011) MS–DRGs. The methods of mix survey. The wage data was not affected statute, when the two budget neutralities are
calculating the proposed relative weights and by any of the provisions under the Affordable combined and applied to the standardized
the reclassification changes to the grouper are Care Act for FY 2011. amount, the overall payment impact is not
described in more detail in the May 4, 2010 Column 3 shows the impacts of updating necessarily budget neutral. However, in this
FY 2011 IPPS/LTCH PPS proposed rule. The the wage data using FY 2007 cost reports. proposed rule, we are estimating that the
proposed changes to the relative weights and Overall, the new wage data will lead to a 0.0 proposed changes in the MS–DRG relative
MS–DRGs shown in Column 2 are prior to percent change for all hospitals before being weights and updated wage data with wage
any offset for budget neutrality. Overall, combined with the wage budget neutrality and budget neutrality applied will result in
hospitals will experience a 0.3 percent adjustment shown in Column 5. Among the a 0.0 change in payments.
increase in payments due to the changes in regions, the largest increase is in the rural We estimate that the combined impact of
the MS–DRGs and relative weights prior to Middle Atlantic region, which experiences a the proposed changes to the relative weights
budget neutrality. Urban hospitals and rural 0.4 percent increase before applying an and MS–DRGs and the proposed updated
hospitals will experience a 0.3 percent adjustment for budget neutrality. The largest wage data with budget neutrality applied will
increase in payments under the updates to decline from updating the wage data is seen result in no change in payments for urban or
the relative weights and MS–DRGs. in Urban East South Central (0.5 percent rural hospitals. Urban New England would
decrease). experience a 0.6 decrease in payments due to
D. Effects of the Application of Recalibration reductions in their case-mix and wages
Budget Neutrality (Column 2) F. Application of the Wage Budget Neutrality compared to the national average, while the
Column 2 shows the effects of the changes Factor (Column 4) urban Pacific area would experience a 0.5
to the MS–DRGs and relative weights with Column 4 shows the impact of the new percent increase in payments because of
the application of the recalibration budget wage data with the application of the wage above average increases in wages and case-
neutrality factor to the standardized amounts. budget neutrality factor. In FY 2010, we mix. Among the rural hospital categories,
Consistent with section 1886(d)(4)(C)(iii) of began calculating separate wage budget rural South Atlantic hospitals would
the Act, we are calculating a recalibration neutrality and recalibration budget neutrality experience the greatest decline in payment
budget neutrality factor to account for the factors, in accordance with section (¥0.9 percent) primarily due to the changes
changes in MS–DRGs and relative weights to 1886(d)(3)(E) of the Act, which specifies that to MS–DRGs and the relative cost weights.
ensure that the overall payment impact is budget neutrality to account for wage
budget neutral. We revised the recalibration changes or updates made under that H. Effects of MGCRB Reclassifications
budget neutrality factor in this notice because subparagraph must be made without regard (Column 6)
we applied a 0.25 reduction to the market to the 62 percent labor-related share Our impact analysis to this point has
basket update to the standardized amount as guaranteed under section 1886(d)(3)(E)(ii) of assumed acute care hospitals are paid on the
required under the Affordable Care Act. the Act. Therefore, for FY 2011, we are basis of their actual geographic location (with
The ‘‘All Hospitals’’ line in Column 1 calculating the wage budget neutrality factor the exception of ongoing policies that
indicates that proposed changes due to MS– to ensure that payments under updated wage provide that certain hospitals receive
DRGs and relative weights will increase data are budget neutral without regard to the payments on other bases than where they are
payments by 0.3 percent before application of lower labor-related share of 62 percent geographically located). The changes in
the budget neutrality factor. The proposed applied to hospitals with a wage index less Column 6 reflect the per case payment
recalibration budget neutrality factor is than or equal to 1. In other words, the wage impact of moving from this baseline to a
0.996867, which is applied to the budget neutrality is calculated under the simulation incorporating the MGCRB
standardized amount. Thus, the impact after assumption that all hospitals receive the decisions for FY 2011 which affect hospitals’
accounting only for budget neutrality for higher labor-related share of the standardized wage index area assignments.
changes to the MS–DRG relative weights and amount. The wage budget neutrality factor is By spring of each year, the MGCRB makes
classification is somewhat lower than the revised because the market basket update to reclassification determinations that will be
figures shown in Column 1 (approximately the standardized amount was reduced by effective for the next fiscal year, which
0.3 percent). Consequentially, urban and 0.25 percent under the Affordable Care Act. begins on October 1. The MGCRB may
rural hospitals will not experience a change Because the wage data changes did not approve a hospital’s reclassification request
in payments when recalibration budget change overall payments (displayed in for the purpose of using another area’s wage
neutrality is applied. Column 3), the revised wage budget index value. Hospitals may appeal denials of
neutrality factor is 1.00007, and the overall MGCRB decisions to the CMS Administrator.
E. Effects of Proposed Wage Index Changes Further, hospitals have 45 days from
payment change is 0.0 percent.
(Column 3) publication of the IPPS rule in the Federal
Section 1886(d)(3)(E) of the Act requires G. Combined Effects of Proposed MS–DRG Register to decide whether to withdraw or
that, beginning October 1, 1993, we annually and Wage Index Changes (Column 5) terminate an approved geographic
update the wage data used to calculate the Section 1886(d)(4)(C)(iii) of the Act reclassification for the following year.
wage index. In accordance with this requires that changes to MS–DRG Provisions in the Affordable Care Act
requirement, the proposed wage index for reclassifications and the relative weights required us to revert to FY 2008 average
hourly wage reclassification criteria for the wage index for any rural hospital in that index of 1.0. This provision is not budget
reclassifications effective in FY 2011. State. Therefore, an imputed floor was neutral and is estimated to increase IPPS
Therefore, additional hospitals will qualify established for States that do not have rural operating payments by approximately $48
for MGCRB reclassification compared to the areas or rural IPPS hospitals. In the FY 2008 million.
FY 2011 IPPS/LTCH PPS proposed rule (or IPPS final rule with comment period (72 FR Urban hospitals located in the West North
will qualify for their primary 47321), we finalized our proposal to extend Central region and urban hospitals located in
reclassification), published on May 4, 2010. the imputed floor for 1 additional year. In the the Mountain region will experience an
This column reflects an expectation that FY 2009 IPPS final rule (73 FR 48573), we increase in payments by 0.5 percent and 0.2,
these additional hospitals will qualify for extended the imputed floor for an additional respectively, because many of the hospitals
geographic reclassification. 3 years through FY 2011. In the FY 2011 located in this region are frontier hospitals.
The overall effect of geographic IPPS/LTCH PPS proposed rule published on Similarly, rural hospitals located in the West
reclassification is required by section May 4, 2010, we applied rural floor budget North Central and rural hospitals in the
1886(d)(8)(D) of the Act to be budget neutral. neutrality at the State-level. However, the Mountain region will experience an increase
Therefore, for the purposes of this impact Affordable Care Act requires that, effective in payments by 0.1 and 0.5, respectively.
analysis, we are applying an adjustment of for FY 2011, we apply rural floor and
0.995425 to ensure that the effects of the imputed floor budget neutrality at the K. Effects of the Proposed Wage Index
section 1886(d)(10) reclassifications are national level, as we did in FY 2008. Adjustment for Out-Migration (Column 9)
budget neutral (section II.A. of the Column 7 shows the projected impact of Section 1886(d)(13) of the Act, as added by
Addendum to this supplemental proposed the rural floor and the imputed floor with the section 505 of Public Law 108–173, provides
rule). Geographic reclassification generally national rural and imputed floor budget for an increase in the wage index for
benefits hospitals in rural areas. We estimate neutrality factor applied to the wage index. hospitals located in certain counties that
that geographic reclassification will increase The column compares the proposed post- have a relatively high percentage of hospital
payments to rural hospitals by an average of reclassification FY 2011 wage index of employees who reside in the county, but
1.6 percent. By region, all the rural hospital providers before the rural floor adjustment work in a different area with a higher wage
categories will experience increases in and the post-reclassification FY 2011 wage index. Hospitals located in counties that
payments due to MGCRB reclassification index of providers with the rural floor and qualify for the payment adjustment are to
where rural hospitals in the Mountain region imputed floor adjustment. Only urban receive an increase in the wage index that is
will experience a 0.1 percent increase in hospitals can benefit from the rural floor equal to a weighted average of the difference
payments and rural hospitals in the East provision. Because the provision is budget between the wage index of the resident
South Central region will experience a 2.4 neutral, all other hospitals (that is, all rural county, post-reclassification and the higher
percent increase in payments. hospitals and those urban hospitals to which wage index work area(s), weighted by the
Table 9A of the Addendum to this the adjustment is not made) experience a overall percentage of workers who are
proposed rule reflects the approved decrease in payments due to the budget employed in an area with a higher wage
reclassifications for FY 2011. neutrality adjustment applied nationally to index. With the out-migration adjustment,
their wage index. small rural providers with less than 100 beds
I. Effects of the Rural Floor and Imputed
We project that, in aggregate, rural will experience a 0.5 percent increase in
Floor, Including Application of National
hospitals will experience a 0.1 percent payments in FY 2011 relative to no
Budget Neutrality (Column 7)
decrease in payments as a result of the adjustment at all. We included these
As discussed in section III.B. of the application of rural floor budget neutrality additional payments to providers in the
preamble of the FY 2009 IPPS final rule, the because the rural hospitals located in States impact table shown above, and we estimate
FY 2010 IPPS/RY 2010 LTCH final rule and with a rural floor do not benefit from the the impact of these providers receiving the
this proposed rule, section 4410 of Public rural floor, but have their wage indexes out-migration increase to be approximately
Law 105–33 established the rural floor by downwardly adjusted to ensure that the $20 million.
requiring that the wage index for a hospital application of the rural floor is budget
in any urban area cannot be less than the neutral overall within the State. We project L. Effects of All Proposed Changes Prior to
wage index received by rural hospitals in the hospitals located in other urban areas Documentation and Coding (or CMI)
same State. In FY 2008, we changed how we (populations of 1 million or fewer) will Adjustment (Column 10)
applied budget neutrality to the rural floor. experience a 0.1 percent increase in Column 10 shows our estimate of the
Rather than applying a budget neutrality payments because those providers benefit changes in payments per discharge from FY
adjustment to the standardized amount, a from the rural floor. Urban hospitals in the 2010 and FY 2011, resulting from all
uniform budget neutrality adjustment is Pacific region can expect 0.9 percent increase proposed changes reflected in this
applied to the wage index. In the FY 2009 in payments because a large percentage of supplemental rule and the May 4, 2010 IPPS/
final rule, we finalized the policy to apply hospitals in this region receive the rural LTCH PPS proposed rule for FY 2011
the rural floor budget neutrality at the State floor. Urban hospitals in the Middle Atlantic (including statutory changes), other than the
level with a 3-year transition. In FY 2009, can expect a 0.1 percent increase in proposed documentation and coding
hospitals received a blended wage index that payments because New Jersey hospitals adjustment. Column 10 reflects the impact of
is 20 percent of a wage index with the State receive the imputed floor with a national all other FY 2011 changes relative to FY
level rural and imputed floor budget budget neutrality adjustment. Rural hospitals 2010, including those shown in Columns 1
neutrality adjustment and 80 percent of a in all regions can expect a 0.1 to 0.2 percent through 9. We note that our baseline FY 2010
wage index with the national budget decrease in payments because the rural and operating estimates account for the
neutrality adjustment. In FY 2010, hospitals imputed floors only benefit urban hospitals. provisions under the Affordable Care Act that
received a blended wage index that is 50 affected the FY 2010 operating payments.
percent of a wage index with the State level J. Effects of the Proposed Application of the The average increase in payments under the
rural and imputed floor budget neutrality and Frontier Wage Index (Column 8) IPPS for all hospitals is approximately 2.0
50 percent of a wage index with the national Section 10324(a) of Affordable Care Act percent. This includes the 2.15 percent
budget neutrality adjustment. For FY 2011, requires that we establish a minimum post- applicable percentage increase (including the
the Affordable Care Act requires that we reclassified wage-index of 1.00 for all ¥0.25 reduction to the market basket
apply one rural floor budget neutrality to the hospitals located in Frontier States. Frontier increase required under the Affordable Care
wage index, nationally. The proposed FY States are defined in the statute as States Act). In addition, it reflects the estimated 0.2
2011 rural floor budget neutrality factor with at least 50 percent of its counties with percentage point difference between the
applied to the wage index is 0.995425. a population density lesser than 6 persons projected outlier payments in FY 2010 (5.1
Furthermore, the FY 2005 IPPS final rule per square mile. Based on these criteria, five percent of total MS–DRG payments), the
(69 FR 49109) established a temporary States (Montana, North Dakota, Nevada, current estimate of the percentage of actual
imputed floor for all urban States from FY South Dakota, and Wyoming) are considered outlier payments in FY 2010 (4.9 percent) as
2005 to FY 2007. The rural floor requires that Frontier States and 51 hospitals located in described in the introduction to this
an urban wage index cannot be lower than those States would receive a frontier wage Appendix and the Addendum to this
proposed rule. Finally, it accounts for ¥0.2 508 reclassifications that had been extended Among special categories of rural
percent decrease in payments due to the for FY 2010 under the Affordable Care Act. hospitals, MDHs will receive an estimated
expiration of Section 508 reclassifications Section 508 reclassification was not a budget- payment decrease of 1.1 percent. MDHs are
that had been extended for FY 2010 under neutral provision. There might also be paid the higher of the IPPS rate based on the
the Affordable Care Act. interactive effects among the various factors national standardized amount, that is, the
There might also be interactive effects comprising the payment system that we are Federal rate, or, if the hospital-specific rate
among the various factors comprising the not able to isolate. For these reasons, the exceeds the Federal rate, the Federal rate
payment system that we are not able to values in Column 11 may not equal the sum plus 75 percent of the difference between the
isolate. For these reasons, the values in of the percentage changes described above. Federal rate and the hospital-specific rate.
Column 10 may not equal the sum of the The overall proposed change in payments MDHs will experience a decrease in
percentage changes described above. per discharge for hospitals paid under the payments because of the proposed
M. Effects of All FY 2011 Proposed Changes IPPS in FY 2011 is estimated to decrease by documentation and coding adjustments
With CMI Adjustment (Column 11) 0.9 percent. The payment decreases among applied to both the hospital-specific rate and
the hospital categories are largely attributed the Federal rate. SCHs are also paid the
Column 11 shows our estimate of the to the proposed documentation and coding
changes in payments per discharge from FY higher of their hospital-specific rate or the
adjustments. Hospitals in urban areas would Federal rate. Overall, SCHs will experience
2010 and FY 2011, resulting from all experience an estimated 0.8 percent decrease
proposed changes reflected in the May 4, an estimated decrease in payments by 1.8
in payments per discharge in FY 2011 percent due to the proposed documentation
2010 IPPS/LTCH PPS proposed rule for FY compared to FY 2010. Hospital payments per
2011 and provisions described in this and coding adjustments to the national
discharge in rural areas are estimated to
supplemental proposed rule required under standardized amount and the hospital-
decrease by 1.4 percent in FY 2011 as
the Affordable Care (including statutory specific rates.
compared to FY 2010. The decreases larger
changes). The FY 2010 baseline estimates Rural hospitals reclassified for FY 2011 are
than the national average for rural areas are
account for the provisions under the anticipated to receive a 1.0 percent payment
Affordable Care Act that affected the FY 2010 largely attributed to the differential impact of
decrease, and rural hospitals that are not
operating payments. Specifically, the FY the MS–DRGs and wage data and due to the
¥2.9 percent documentation and coding reclassifying are estimated to receive a
2010 baseline payment estimates account for payment decrease of 1.9 percent.
the additional ¥0.25 reduction in the adjustment applied to the national
standardized amount and the ¥2.9 percent Cardiac hospitals are expected to
applicable percentage increase applied to experience a payment increase of 0.3 percent
discharges for FY 2010 discharges occurring documentation and coding adjustment to the
hospital-specific rate applied to SCHs and in FY 2011 relative to FY 2010 due to
on or after April 1, 2010 and accounts for the increases in payments attributable to changes
extension of Section 508 reclassifications for MDHs, which generally are classified as rural
hospitals. in the MS–DRGs and relative weights.
FY 2010. As discussed in the FY 2011 IPPS/
LTCH PPS proposed rule, this column Among urban census divisions, the largest N. Impact Analysis of Table II
includes the proposed FY 2011 estimated payment decreases will be 2.0
percent in the New England region and 1.4 Table II presents the projected impact of
documentation and coding adjustment of the proposed changes for FY 2011 as
¥2.9 percent on the national standardized percent in the Middle Atlantic region
because many of the urban providers in these published in the May 4, 2010 FY 2011 IPPS/
amount, ¥2.9 percent on the hospital-
regions had benefited from Section 508 LTCH PPS proposed rule and the provisions
specific rates, and ¥2.4 percent on the
reclassification in FY 2010 that has expired required under the Affordable Care Act in
Puerto Rico-specific standardized amount,
for FY 2011. Urban hospitals in the Pacific this notice for urban and rural hospitals and
which overall accounts for a 2.9 percent
decrease in payments. will see the largest payment increases (0.6 for the different categories of hospitals shown
The average decrease in payments under percent) because urban providers in this in Table I. It compares the estimated average
the IPPS for all hospitals is approximately region will benefit from the rural floor and payments per discharge for FY 2010 with the
¥0.9 percent. As described in Column 10, application of a national rural floor budget proposed payments per discharge for FY
this average decrease includes the effects of neutrality factor. Among the rural regions, 2011, as calculated under our models. The
the 2.15 percent market basket update the providers in the New England region will estimated FY 2010 payments per discharge
(including the ¥0.25 reduction in the experience the largest decrease in payments incorporate the provisions in the Affordable
applicable percentage increase required (2.3 percent) because of the expiration of Care Act. Thus, this table presents, in terms
under the Affordable Care Act), the 0.2 Section 508 reclassifications while rural of the average dollar amounts paid per
percentage point difference between the hospitals in the Mountain region will discharge, the combined effects of the
projected outlier payments in FY 2011 (5.1 experience the smallest decreases in proposed changes presented in Table I. The
percent of total MS–DRG payments), and the payments by 0.4 percent because the rural estimated percentage changes shown in the
current estimate of the percentage of actual providers in this region benefit from MGCRB last column of Table II equal the estimated
outlier payments in FY 2010 (4.9 percent). In reclassification and the Frontier wage index percentage changes in average payments per
addition, it includes a ¥0.2 percent decrease provision, required under the Affordable discharge from Column 11 of Table I.
in payments due to the expiration of Section Care Act. BILLING CODE 4120–01–P
EP02JN10.147</GPH>
EP02JN10.148</GPH>
BILLING CODE 4120–01–C with 200 or less Medicare discharges to no 2011. For FY 2012, the extension allows the
VII. Effects of Other Supplemental Proposed additional payment to hospitals with 1,600 or continuation of MDH status and the payment
Policy Changes more Medicare discharges. methodology, for an MDH to be paid its
We estimate, based on FY 2009 claims hospital-specific rate, based on its FY 1982,
In addition to those supplemental (MedPAR) data, an additional 1,524 hospitals 1987, or 2002 costs per discharge, rather than
proposed policy changes discussed above would meet the Medicare discharges the Federal rate, if this results in a greater
that we are able to model using our IPPS criterion to qualify as a low-volume hospital. aggregate payment (section II.D. of the
payment simulation model, we are proposing However, we are not able to estimate the preamble to this supplemental proposed
to make various other changes in this number of these 1,524 hospitals that would
supplemental proposed rule. Generally, we rule). Therefore, the impact of the extension
also meet the distance criterion. The actual is one additional year of hospital-specific rate
have limited or no specific data available number of hospitals that would also meet the
with which to estimate the impacts of these payments for MDHs rather than Federal rate
distance criterion to qualify as a low-volume payments for IPPS hospitals without special
changes. Our estimates of the likely impacts hospital would be less, very likely much less,
associated with these other supplemental treatment as an MDH.
than the estimated 1,524 maximum number
proposed changes are discussed below. of potential low-volume hospitals for FY C. Effects of the Supplemental Proposed
A. Effects of the Supplemental Proposed 2011. If all 1,524 hospitals that meet the Additional Payments to Qualifying Hospitals
Low-Volume Hospital Payment Adjustment: Medicare discharge requirement also meet in Low Medicare Spending Counties
Changes for FYs 2011 and 2012 the distance requirement, the additional Under section 1109 of Public Law 111–152,
Medicare IPPS dollars the temporary change
The low-volume hospital payment Congress has allocated $400 million to be
to the low-volume hospital payment
adjustment changes for FYs 2011 and 2012, spent for FYs 2011 and 2012 to qualifying
adjustment would require, at most, based on
as discussed in section II.C. of the preamble hospitals located in the bottom quartile of
each hospital’s number of Medicare
to this supplemental proposed rule, expands discharges and the corresponding payment counties with the lowest Medicare Part A and
eligibility for the low-volume hospital adjustment amount, an estimated $877 Part B spending per enrollee. In our proposal
payment adjustment to hospitals with less million for FY 2011. At this time, we are not described in section II.E. of the preamble to
than 1,600 Medicare discharges (instead of able to estimate the impact of the change for this supplemental proposed rule, we have
the prior requirement of less than 800 total, FY 2012. identified the list of eligible counties and the
Medicare and non-Medicare, discharges) and qualifying hospitals located in those counties
more than 15 miles from other IPPS hospitals B. Effects of the Supplemental Proposed that would receive the $400 million. We are
(rather than the prior requirement of more Change for Medicare-Dependent, Small Rural proposing to spend $200 million in FY 2011
than 25 miles). The payment adjustment is Hospitals and $200 million in FY 2012. This money
changed also, from an empirically As discussed in section II.D. of the will be given to the qualifying hospitals by
determined (69 FR 49099 through 49102 and preamble to this supplemental proposed rule, the FI or A/B MAC through a one-time
70 FR 47432 through 47434) additional 25 section 3124 of Public Law 111–148 extends annual payment. In section II.E. of the
percent payment adjustment to qualifying the MDH program for 1 additional year, from preamble to this supplemental proposed rule,
hospitals with less than 200 total discharges, the end of FY 2011 (that is, for discharges Table 2 lists the distribution of payments
to a continuous, linear sliding scale before October 1, 2011) to the end of FY 2012 among the proposed list of qualifying
adjustment ranging from an additional 25 (that is, for discharges before October 1, hospitals. In addition, Table 3 in section II.E.
EP02JN10.149</GPH>
percent payment adjustment to hospitals 2012). The extension has no impact on FY of the preamble to this supplemental
proposed rule lists the distribution of reports beginning in FY 2007, and the 2010 FY 2011 IPPS/LTCH PPS proposed
payment by State for FY 2011. amount that was offset by the budget rule—the December 2009 update of the FY
neutrality adjustment for FY 2007. The 2009 MedPAR file and the December 2009
D. Effects of the Supplemental Proposed specific numeric value associated with this update of the Provider-Specific File (PSF)
Implementation of the Rural Community component of the proposed adjustment to the that is used for payment purposes. Although
Hospital Demonstration Program national IPPS rates cannot be known until the analyses of the changes to the capital
In section II.F. of the preamble of this cost reports beginning in FY 2007 for the prospective payment system do not
supplemental rule, we discuss our hospitals participating during FY 2007 in the incorporate cost data, we used the December
implementation of section 410A of Public demonstration are settled. We expect those 2009 update of the most recently available
Law 108–173, which required the Secretary cost reports to be settled prior to the hospital cost report data (FYs 2006 and 2007)
to establish a demonstration that would publication of the FY 2011 IPPS/LTCH PPS to categorize hospitals. Our analysis has
modify reimbursement for inpatient services final rule, and that we will be able to several qualifications. We use the best data
for up to 15 small rural hospitals. Section incorporate the estimated amount in the FY available and make assumptions about case-
410A(c)(2) Public Law 108–173 requires that 2011 IPPS/LTCH PPS final rule. mix and beneficiary enrollment as described
‘‘[i]n conducting the demonstration program below. In addition, as discussed in section
under this section, the Secretary shall ensure E. Effects of the Supplemental Proposed V.E. of the Preamble to the May 4, 2010 FY
that the aggregate payments made by the Payment for Critical Access Hospital 2011 IPPS/LTCH PPS proposed rule, we are
Secretary do not exceed the amount which Outpatient Services and Ambulance Services proposing a ¥2.9 percent documentation and
the Secretary would have paid if the In section II.H. of the preamble of this coding adjustment to the national capital rate
demonstration program under this section supplemental proposed rule, we discuss our for FY 2011 in addition to the ¥0.6 percent
was not implemented.’’ As discussed in proposal to implement section 3128 of Public adjustment established for FY 2008, and the
section II.F. of the preamble of this Law 111–148 by amending the regulations at ¥0.9 percent adjustment for FY 2009. This
supplemental rule, in the IPPS final rule for § 413.70(b)(3)(ii)(A) to state that, effective for results in a cumulative adjustment factor of
each of the previous 6 fiscal years, we have cost reporting periods beginning on or after 0.957 that we are proposing to apply to the
estimated the additional payments as a result January 1, 2004, payment for outpatient national capital rate to account for
of the demonstration for each of the facility services under the optional method improvements in documentation and coding
participating hospitals. In order to achieve will also be made at 101 percent of under the MS–DRGs in FY 2011. We also are
budget neutrality, we are proposing to adjust reasonable costs. We are also proposing to proposing to adjust the Puerto Rico-specific
the national IPPS rates by an amount amend the regulations at § 413.70(b)(5)(i) to capital rate in FY 2011 to account for changes
sufficient to account for the added costs of state that effective for cost reporting periods in documentation and coding resulting from
this demonstration. In other words, we are beginning on or after January 1, 2004, the adoption of the MS–DRGs.
proposing to apply budget neutrality across payment for ambulance services furnished by Due to the interdependent nature of the
the payment system as a whole rather than a CAH or an entity that is owned and IPPS, it is very difficult to precisely quantify
merely across the participants of this operated by a CAH is 101 percent of the the impact associated with each change. In
demonstration. We believe that the language reasonable costs of the CAH or the entity in addition, we draw upon various sources for
of the statutory budget neutrality requirement furnishing those services, but only if the CAH the data used to categorize hospitals in the
permits the agency to implement the budget or the entity is the only provider or supplier tables. In some cases (for instance, the
neutrality provision in this manner. The of ambulance services located within a 35- number of beds), there is a fair degree of
statutory language requires that ‘‘aggregate mile drive of the CAH or the entity. We do variation in the data from different sources.
payments made by the Secretary do not not believe these proposals will result in We have attempted to construct these
exceed the amount which the Secretary additional payments to CAHs for prior variables with the best available sources
would have paid if the demonstration * * * periods because we believe that in fact we overall. However, for individual hospitals,
was not implemented’’ but does not identify have paid CAHs for these services at 101 some miscategorizations are possible.
the range across which aggregate payments percent of reasonable costs during these prior Using cases from the December 2009
must be held equal. periods. update of the FY 2009 MedPAR file, we
An extension of this demonstration has VIII. Effects of Proposed Changes in the simulated payments under the capital IPPS
been mandated by the Affordable Care Act. Capital IPPS for revised FY 2010 and revised FY 2011
The demonstration will be extended for an (both years have been revised to account for
additional 5 years and expanded to up to 30 A. General Considerations provisions in the Affordable Care Act that
hospitals. We are proposing to make an Provisions of Public Law 111–148 required changes to the wage index and
adjustment in the FY 2011 IPPS/LTCH PPS necessitated revising the May 4, 2010 FY outlier threshold, as discussed above in this
final rule of $69,279,673 to the national IPPS 2011 IPPS/LTCH PPS proposed rule. While section) for a comparison of total payments
rates. This amount ($69,279,673) accounts for the proposed IPPS payment rates for capital- per case. Any short-term, acute care hospitals
the following: (1) An estimate of the related costs were not directly affected by not paid under the general IPPS (Indian
demonstration cost for FY 2011 for the 10 provisions of Public Law 111–148, changes to Health Service hospitals and hospitals in
hospitals that are currently participating in the wage index as well as to the outlier Maryland) are excluded from the
the demonstration; (2) an estimate of the cost payment adjustment factor were required by simulations.
of the continuation of the 7 hospitals that the law. Changes to the wage index affect the The basic methodology for determining a
have participated in the demonstration since geographic adjustment factor (GAF) under capital IPPS payment is set forth at § 412.312.
its inception and that are still participating— the capital IPPS which is used in conjunction The basic methodology for calculating capital
for the portions of their cost reporting with a factor for changes in DRG IPPS payments in FY 2011 is as follows:
periods in FY 2010 that are not covered in classifications and weights to determine a (Standard Federal Rate) × (DRG weight) ×
the estimated cost of the demonstration in proposed budget neutrality adjustment factor (GAF) × (COLA for hospitals located in
the FY 2010 IPPS final rule because we in calculating the proposed capital IPPS rate. Alaska and Hawaii) × (1 + DSH Adjustment
formulated these estimates under the A revision of the proposed outlier payment Factor + IME adjustment factor, if
assumption that the demonstration would adjustment factor was required because both applicable).
end in FY 2010; and (3) an estimate of the inpatient operating and inpatient capital- In addition to the other adjustments,
cost of participation in the demonstration for related payments use a single set of hospitals may also receive outlier payments
20 additional hospitals in FY 2011. Not thresholds to identify outlier cases. Changes for those cases that qualify under the
included in this amount is an adjustment that resulting from the provisions of Public Law threshold established for each fiscal year. We
we proposed to make in addition for the FY 111–148 are discussed in more detail in modeled payments for each hospital by
2011 IPPS/LTCH PPS final rule to account for section II.A. of the preamble of this multiplying the capital Federal rate by the
any differences between the cost of the supplemental proposed rule. GAF and the hospital’s case-mix. We then
demonstration program for hospitals The data used in developing the impact added estimated payments for indirect
participating in the demonstration during FY analysis presented below are the same as that medical education, disproportionate share,
2007, as indicated by their settled cost used for the impact analysis in the May 4, and outliers, if applicable. For purposes of
this impact analysis, the model includes the estimated total payments per case for FY The change comparisons by regions show
following assumptions (we note that these 2010, as revised per the Affordable Care Act, some regions experiencing slight increases in
are the same assumptions used for the impact compared to FY 2011 based on the proposed total capital payments, while other regions
analysis in the FY 2011 IPPS/LTCH PPS FY 2011 payment policies. Column 2 shows are estimated to experience slight decreases
proposed rule (75 FR 24310): estimates of payments per case under our in capital payments from FY 2010 to FY
• We estimate that the Medicare case-mix model for FY 2010 (as revised). Column 3 2011. For the urban regions, changes in
index will increase by 1.0 percent in both shows estimates of payments per case under capital payments range from a ¥1.6 percent
FYs 2010 and 2011. our model for FY 2011. Column 4 shows the
in the New England region to an increase of
• We estimate that the Medicare total percentage change in payments from
discharges will be approximately 11.8 revised FY 2010 to FY 2011. The change 1.4 percent for the Pacific region. The rural
million in FY 2010 and 12 million FY 2011. represented in Column 4 includes the regions show estimates of a ¥2.4 percent
• The capital Federal rate was updated proposed 1.5 percent update to the capital change in capital payments from FY 2010 to
beginning in FY 1996 by an analytical Federal rate and other proposed changes in FY 2011 in the New England rural region to
framework that considers changes in the the adjustments to the capital Federal rate. a 2.1 percent increase for the Mountain rural
prices associated with capital-related costs The comparisons are provided by: (1) region.
and adjustments to account for forecast error, Geographic location; (2) region; and (3) By type of ownership, proprietary hospitals
changes in the case-mix index, allowable payment classification. are estimated to experience a 0.2 percent
changes in intensity, and other factors. The The simulation results show that, on change in capital payments, voluntary
proposed factors used in the update average, capital payments per case in FY hospitals are estimated to experience a 0.3
framework are not affected by the provisions 2011 are expected to decrease as compared percent decrease in capital payments per
of Pub. L. 111–148, as amended, and to capital payments per case in FY 2010. The case, while there is no change estimated for
therefore, remains at the proposed 1.5 proposed capital rate for FY 2011 would government hospitals in capital payments per
percent for FY 2011, as discussed in section increase 1.5 percent as compared to the FY case from FY 2010 to FY 2011.
III.A.1. of the May 4, 2010 FY 2011 I PPS/ 2010 capital rate. The proposed changes to Section 1886(d)(10) of the Act established
LTCH PPS proposed rule. the GAFs are expected to result, on average,
the MGCRB. Hospitals may apply for
• In addition to the proposed FY 2011 in a slight decrease in capital payments,
reclassification for purposes of the wage
update factor, the proposed FY 2011 capital although, for rural regions, it is more of a
Federal rate was calculated based on a contributing factor to the overall decrease in index for FY 2011. Reclassification for wage
proposed GAF/DRG budget neutrality factor capital payments than to urban areas mostly index purposes also affects the GAFs because
of 1.0015, a proposed outlier adjustment due to the application of the rural floor to the that factor is constructed from the hospital
factor of 0.9432, and a proposed (special) wage index. We also are estimating an wage index.
exceptions adjustment factor of 0.9997. increase in outlier payments from FY 2010 to To present the effects of the hospitals being
• For FY 2011, as discussed above and in FY 2011 due primarily to an estimated reclassified for FY 2011, we show the average
section V.E. of the preamble to the May 4, decrease in capital IPPS payments per capital payments per case for reclassified
2010 FY 2011 IPPS/LTCH PPS proposed rule, discharge. Since capital payments per hospitals for FY 2010, as revised per the
we are proposing to apply a 0.957 adjustment discharge are projected to be slightly lower Affordable Care Act. All classifications of
to the proposed FY 2011 national capital rate in FY 2011 compared to FY 2010, more cases reclassified hospitals are expected to
for changes in documentation and coding would qualify for outlier payments. Because experience a decrease in capital payments in
that are expected to increase case-mix under our impact analysis includes actuarial FY 2011 as compared to FY 2010. Urban
the MS–DRGs. assumptions of growth from FY 2010 to FY reclassified and rural reclassified hospitals
2011, the analysis shows a slight increase in are expected to have a decrease in capital
B. Results capital payments. However, the net impact of payments of ¥0.4 percent and ¥0.3 percent,
We used the actuarial model described these proposed changes is an estimated ¥0.2 respectively. No change is estimated in
above to estimate the potential impact of our percent change in capital payments per capital payments for urban non-reclassified
proposed changes for FY 2011 on total discharge from FY 2010 to FY 2011 for all hospitals, while rural non-reclassified
capital payments per case, using a universe hospitals (as shown below in Table III).
hospital capital payments are estimated to
of 3,472 hospitals. As described above, the The geographic comparison shows that, on
decrease 0.9 percent. Other reclassified
individual hospital payment parameters are average, all urban hospitals, as well as
taken from the best available data, including hospitals in large urban areas, are expected hospitals (that is, hospitals reclassified under
the December 2009 update of the FY 2009 to experience a 0.1 percent decrease in section 1886(d)(8)(B) of the Act) are expected
MedPAR file, the December 2009 update to capital IPPS payments per case in FY 2011 to experience a decrease of 1.6 percent in
the PSF, and the most recent cost report data as compared to FY 2010. Capital IPPS capital payments from FY 2010 to FY 2011.
from the December 2009 update of HCRIS. In payments per case for rural hospitals are BILLING CODE 4120–01–P
Table III, we present a comparison of expected to decrease 0.6 percent.
EP02JN10.150</GPH>
IX. Effects of Supplemental Proposed Currently, our database of 421 LTCHs As discussed in section III.A.3. of the
Payment Rate Changes and Policy Changes includes the data for 77 nonprofit (voluntary Addendum to this proposed rule, consistent
Under the LTCH PPS ownership control) LTCHs and 301 with our historical practice, we are proposing
proprietary LTCHs. Of the remaining 43 to update the standard Federal rate for FY
A. Introduction and General Considerations LTCHs, 12 LTCHs are government-owned 2011 by ¥0.59 percent in order to establish
In section II.J. of the preamble and section and operated and the ownership type of the the proposed FY 2011 standard Federal rate
III. of the Addendum of this proposed rule, other 31 LTCHs is unknown. In the impact at $39,560.16. This includes a proposed
we are setting forth the proposed annual analysis, we are using the proposed rates, market basket update of 2.4 percent with a
update to the payment rates for the LTCH factors, and policies presented in this 0.50 percentage point reduction as required
PPS for FY 2011. In the preamble, we specify supplemental proposed rule, including the under sections 1886(m)(3) and (4) of the Act,
the statutory authority for the proposed 0.50 percentage point reduction to the market and a proposed documentation and coding
provisions that are presented, identify those basket update required by sections adjustment of ¥2.5 percent to account for
proposed policies and present rationale for 1886(m)(3) and (4) of the Act and the increases in case-mix associated with the
our decisions as well as alternatives that proposed updated wage index values and the adoption of the MS–LTC–DRGs. Based on the
were considered. In this section IX. of labor-related share (presented in the May 4, best available data for the 421 LTCHs in our
Appendix to this supplemental proposed 2010 FY 2010 IPPS/LTCH PPS proposed database, we estimate that the proposed
rule), and the best available claims and CCR update to the standard Federal rate for FY
rule, we discuss the impact of the proposed
data to estimate the change in payments for 2011 (discussed in section III.A.3. of the
changes to the payment rates, factors, and
FY 2011. The standard Federal rate for RY Addendum of this supplemental proposed
other payment rate policies related to the
2010 is $39,794.95, which reflects the 0.25 rule) and the proposed changes to the area
LTCH PPS that are presented in the preamble percentage point reduction applied to the RY wage adjustment for FY 2011 (discussed in
of this proposed rule in terms of their 2010 market basket update required under section V.B. of the Addendum to the May 4,
estimated fiscal impact on the Medicare sections 1886(m)(3) and (4) of the Act (as 2010 IPPS/LTCH PPS FY 2011 IPPS/LTCH
budget and on LTCHs. established in a separate notice published PPS proposed rule (75 FR 24085 through
A number of the provisions of the
elsewhere in this Federal Register). 24086)), in addition to an estimated increase

Affordable Care Act affect the IPPS and the Discharges in RY 2010 occurring on or after in HCO payments and an estimated increase
LTCH PPS and the providers and suppliers April 1, 2010 are aid under the revised RY in SSO payments, would result in an increase
addressed in the May 4, 2010 FY 2011 IPPS/ 2010 standard Federal rate consistent with in estimated payments from RY 2010 of
LTCH PPS proposed rule and this section 3401(p) of Public Law 111–148. approximately $12.9 million (or about 0.3
supplemental proposed rule. The impacts of Discharges in RY 2010 occurring on or after percent). Based on the 421 LTCHs in our
the Appendix to this supplemental proposed October 1, 2009 and on or before March 31, database, we estimate RY 2011 LTCH PPS
rule include the provisions from these laws 2010 are paid under the standard Federal rate payments to be approximately $4.913 billion,
EP02JN10.151</GPH>
effective for FY 2011. of $39,896.65 (see 74 FR 44022). an increase from FY 2010 LTCH PPS
payments of approximately $4.901 billion. to ensure that estimated HCO payments will 2010 average payment per case in Table IV
Because the combined distributional effects be 8 percent of total estimated LTCH PPS accounts for the changes required by sections
and estimated changes to the Medicare payments in FY 2011. An analysis of the 1886(m)(3) and (4) of the Act and section
program payments would be greater than most recent available LTCH PPS claims data 3401(p) of Public Law 111–148 which affects
$100 million, this proposed rule, in (that is, FY 2009 claims from the December payments for discharges occurring on or after
conjunction with the May 4, 2010 IPPS/ 2009 update of the MedPAR files) indicates April 1, 2010, as described below in section
LTCH PPS FY 2011 IPPS/LTCH PPS that the RY 2010 HCO threshold of $18,615 IX.C.3. of the Appendix to this supplemental
proposed rule, is considered a major (as established in a separate notice published proposed rule.
economic rule, as defined in this section. We elsewhere in this Federal Register) may Consistent with the May 4, 2010 FY 2011
note the approximately $12.9 million for the result in HCO payments in RY 2010 that fall IPPS/LTCH PPS proposed rule, the estimated
projected increase in estimated aggregate below the estimated 8 percent. Specifically, increase in LTCH PPS payments from RY
LTCH PPS payments from RY 2010 to FY we currently estimate that HCO payments 2010 to FY 2011 for rural LTCHs is primarily
2011 does not reflect changes in LTCH will be approximately 7.5 percent of due to the higher than average impacts from
admissions or case-mix intensity in estimated estimated total LTCH PPS payments in RY the proposed changes to the area wage
LTCH PPS payments, which also would 2010. We note that the RY 2010 outlier adjustment and the proposed reduction in
affect overall payment changes. payment estimate in this impact analysis the labor-related share from 75.779 to 75.407,
The projected 0.3 percent increase in takes into account for the revised RY 2010 which results in a estimated 0.6 percent
estimated payments per discharge from RY rate and outlier threshold determined increase in payments.
2010 to FY 2011 is attributable to several consistent with sections 1886(m)(3) and (4) of
factors, including the proposed ¥0.59 C. Anticipated Effects of Proposed LTCH PPS
the Act and section 3401(p) of Public Law
percent decrease to the standard Federal rate, Payment Rate Change and Policy Changes
111–148 that are used to make payments for
proposed changes in the wage index values discharges in RY 2010 that occur on or after We discuss the impact of the proposed
(including the proposed change to the labor- April 1, 2010. Consistent with our estimate changes to the payment rates, factors, and
related share) presented in the May 4, 2010 in the May 4, 2010 FY 2011 IPPS/LTCH PPS other payment rate policies under the LTCH
FY 2011 IPPS/LTCH PPS proposed rule (75 proposed rule, we estimate that the impact of PPS for FY 2011 (in terms of their estimated
FR 24085 through 24086) and projected the increase in HCO payments would result fiscal impact on the Medicare budget and on
increases in estimated HCO and SSO in approximately a 0.5 percent increase in LTCHs) in section II.I. of the preamble of this
payments. As Table IV shows, the proposed estimated payments from RY 2010 to FY supplemental proposed rule.
change attributable solely to the standard 2011 on average for all LTCHs. Furthermore, 1. Budgetary Impact
Federal rate is projected to result in a in calculating the estimated increase in Section 123(a)(1) of the BBRA requires that
decrease of 0.5 percent in estimated payments from RY 2010 to FY 2011 for HCO the PPS developed for LTCHs ‘‘maintain
payments per discharge from RY 2010 to FY and SSO cases, we increased estimated costs budget neutrality.’’ We believe that the
2011, on average, for all LTCHs, while the by the applicable market basket percentage statute’s mandate for budget neutrality
proposed changes to the area wage increase as projected by our actuaries, which applies only to the first year of the
adjustment are projected to result in an increases payments by 0.3 percent relative to implementation of the LTCH PPS (that is, FY
increase in estimated payments of 0.1 last year. We note that estimated payments 2003). Therefore, in calculating the FY 2003
percent, on average, for all LTCHs. for all SSO cases comprise approximately 14 standard Federal rate under § 412.523(d)(2),
As discussed in the May 4, 2010 FY 2011 percent of estimated total LTCH PPS we set total estimated payments for FY 2003
IPPS/LTCH proposed rule (75 FR 24085 payments, and estimated payments for HCO under the LTCH PPS so that estimated
through 24086), we are proposing to update cases comprise approximately 8 percent of aggregate payments under the LTCH PPS
the wage index values for FY 2011 based on estimated total LTCH PPS payments. were estimated to equal the amount that
the most recent available data. In addition, Payments for HCO cases are based on 80 would have been paid if the LTCH PPS had
we are proposing to decrease the labor- percent of the estimated cost of the case not been implemented.
related share slightly from 75.779 percent to above the HCO threshold, while the majority As discussed in section IX.A. of this
75.407 percent under the LTCH PPS for FY of the payments for SSO cases (over 65 Appendix, we project an increase in
2011 based on the most recent available data percent) are based on the estimated cost of aggregate LTCH PPS payments in FY 2011 of
on the relative importance of the labor- the SSO case. approximately $12.9 million (or 0.3 percent)
related share of operating and capital costs of As we discuss in detail throughout this based on the 421 LTCHs in our database.
the RPL market basket. Consistent with the supplemental proposed rule, based on the
May 4, 2010 FY 2011 IPPS/LTCH proposed 2. Impact of Moratorium and Other
most recent available data, we believe that
rule, the wage data and the labor-related Provisions
the provisions of this supplemental proposed
share is expected to increase LTCH PPS rule in conjunction with the provisions of the Section 114(c) and (d) of the Medicare,
payments by 0.1 percent (75 FR 24317 May 4, 2010 FY 2011 IPPS/LTCH PPS Medicaid, and SCHIP Extension Act of 2007
through 27318). proposed rule, relating to the LTCH PPS will (MMSEA) as amended by section 4302 of the
Table IV below shows the impact of the result in an increase in estimated aggregate American Recovery and Reinvestment Act of
proposed payment rate and proposed policy LTCH PPS payments and that the resulting 2009 (ARRA) provided for a 3-year delay in
changes on LTCH PPS payments for FY 2011 LTCH PPS payment amounts result in certain payment policies relating to LTCHs
presented in this supplemental proposed appropriate Medicare payments. and LTCH satellite facilities. Section 3106 of
rule, in conjunction with the May 4, 2010 FY Public Law 111–148 and section 10312 of
2011 IPPS/LTCH PPS proposed rule, by B. Impact on Rural Hospitals Public Law 111–148 together provide for a
comparing RY 2010 estimated payments to For purposes of section 1102(b) of the Act, 2-year extension of the 3-year delay in
FY 2011 estimated payments. The projected we define a small rural hospital as a hospital implementation of certain payment policies
increase in payments per discharge from RY that is located outside of an urban area and relating to LTCHs and LTCH satellite
2010 to FY 2011 is 0.3 percent (shown in has fewer than 100 beds. As shown in Table facilities. Specifically, these provisions affect
Column 8). This projected increase in IV, we are projecting a 0.7 percent increase payment adjustments for ‘‘very’’ short stay
payments is attributable to the impacts of the in estimated payments per discharge for FY outliers (SSOs), the one-time adjustment to
proposed change to the standard Federal rate 2011 as compared to RY 2010 for rural the standard Federal rate, the 25 percent
(¥0.5 percent in Column 6) and the LTCHs that would result from the proposed payment threshold policy, and the
proposed change due to the area wage changes presented in this supplemental moratorium on the establishment of new
adjustment (0. percent in Column 7), as well proposed rule and those changes in the May LTCHs and LTCH satellite facilities and the
as the effect of the estimated increase in 4, 2010 FY 2011 IPPS/LTCH PPS proposed moratorium on the increase on LTCH beds in
payments for HCO cases and SSO cases in FY rule as well as the effect of estimated changes existing LTCHs or satellite facilities.
2011 as compared to RY 2010 (0.5 percent to HCO and SSO payments. This estimated Sections 3106 and 10312 of Public Law
and 0.3 percent, respectively). That is, impact is based on the data for the 26 rural 111–148 together provide for a 2-year
estimated total HCO payments are projected LTCHs in our database of 421 LTCHs, for extension of the 3-year delay in
to increase from RY 2010 to FY 2011 in order which complete data were available. The RY implementation of the revision to the SSO
policy at § 412.529(c)(3)(i) that was finalized factors, policies, and GROUPER (Version 43968), the wage index values established in
in the RY 2008 final rule. We estimate that 28.0) for FY 2011 (as discussed in II.J. of the the Tables 12A and 12B of the Addendum to
the extension of the SSO provision will result preamble and section III.A. of the Addendum the FY 2010 IPPS/RY 2010 LTCH PPS final
in a projected increase in estimated aggregate to this supplemental proposed rule and rule (74 FR 44192 through 44213) and the RY
LTCH PPS payments of approximately $20 section VII. of the preamble and section V. 2010 COLA factors shown in the table in
million in FY 2011. Sections 3106 and 10312 of the Addendum of the May 4, 2011 IPPS/ section V. of the Addendum to that final rule
of Public Law 111–148 together provide for LTCH PPS FY 2011 proposed rule). These (74 FR 44026). Similarly, we adjusted for area
a 2-year extension to several modifications to estimates of RY 2010 and FY 2011 LTCH PPS wage differences for estimated FY 2011
the regulations at § 412.534 and § 412.536 payments are based on the best available payments using the proposed LTCH PPS FY
required by section 114(c) of MMSEA as LTCH claims data and other factors, such as 2011 labor-related share of 75.407 percent
amended by section 4302 of the ARRA, the application of inflation factors to estimate (section VII.C.2.d. in the May 4, 2010 FY
which addressed the percentage thresholds costs for SSO and HCO cases in each year. 2011 IPPS/LTCH PPS proposed rule), the FY
between referring hospitals and LTCHs and We also evaluated the change in estimated 2011 proposed wage index values presented
satellites of LTCHs. We estimate that the RY 2010 payments to estimated FY 2011 in Tables 12A and 12B of the Addendum to
implementation of this extension of the payments (on a per discharge basis) for each this proposed rule, and the FY 2011 COLA
MMSEA provisions, as amended by the category of LTCHs. factors shown in the table in section V.B.5.
ARRA, pertaining to § 412.534 and § 412.536 Hospital groups were based on of the Addendum to the May 4, 2010 FY 2011
will result in a projected increase in characteristics provided in the OSCAR data, IPPS/LTCH PPS proposed rule.
estimated aggregate LTCH PPS payments of FY 2006 through FY 2007 cost report data in As discussed above, our impact analysis
approximately $20 million for FY 2011. HCRIS, and PSF data. Hospitals with reflects an estimated change in payments for
Regarding the 2-year extension of the incomplete characteristics were grouped into SSO cases as well as an estimated increase
moratorium on the development of new the ‘‘unknown’’ category. Hospital groups in payments for HCO cases (as described in
LTCHs and LTCH satellites and the increase include the following: section V.C. of the Addendum to this
in beds in existing LTCHs and LTCH • Location: Large urban/other urban/rural. proposed rule). In modeling proposed
satellites, as we noted in the May 22, 2008 • Participation date. payments for SSO and HCO cases in RY
interim final rule with comment period when • Ownership control. 2010, we applied an inflation factor of 1.024
the original 3-year delay required by section • Census region. percent (determined by OACT) to the
114(d) of the MMSEA as amended by the • Bed size. estimated costs of each case determined from
ARRA, was implemented, we are unable to To estimate the impacts of the payment the charges reported on the claims in the FY
quantify the impact of the additional 2 year rates and policy changes among the various 2009 MedPAR files and the best available
moratorium on the establishment of LTCHs, categories of existing providers, we used CCRs from the December 2009 update of the
LTCH satellite facilities, and on the increase LTCH cases from the FY 2009 MedPAR file PSF. In modeling proposed payments for
of LTCH beds in existing LTCHs or satellite to estimate payments for RY 2010 and to SSO and HCO cases in FY 2011, we applied
facilities with limited exceptions. We are estimate payments for FY 2011 for 421 an inflation factor of 1.049 (determined by
unable to provide an estimate of the impact LTCHs. We believe that the discharges based OACT) to the estimated costs of each case
of the 2-year extension of this provision on the FY 2009 MedPAR data for the 421 determined from the charges reported on the
because we have no way of determining how LTCHs in our database, which includes 301 claims in the FY 2009 MedPAR files and the
many LTCHs would have opened in the proprietary LTCHs, provide sufficient best available CCRs from the December 2009
absence of the moratorium, nor do we have representation in the MS–LTC–DRGs update of the PSF. Furthermore, in modeling
sufficient information at this time to containing discharges for patients who estimated LTCH PPS payments for both RY
determine how many new LTCHs will meet received LTCH care for the most commonly 2010 and FY 2011 in this impact analysis, we
the exceptions criteria provided for in the treated LTCH patients’ diagnoses. applied the RY 2010 HCO fixed-loss amount
statute. 4. Calculation of Prospective Payments of $18,425 (74 FR 44029) for the first half of
3. Impact on Providers For purposes of this impact analysis, to RY 2010, the revised RY 2010 HCO fixed-loss
The basic methodology for determining a estimate per discharge payments under the amount of $18,615 established in conjunction
per discharge LTCH PPS payment is set forth LTCH PPS, we simulated payments on a with implementing the provisions of sections
in § 412.515 through § 412.536. In addition to case-by-case basis using LTCH claims from 1886(m)(3) and (4) of the Act and section
the basic MS–LTC–DRG payment (standard the FY 2009 MedPAR files. For modeling 3401(p) of Public Law 111–148 for the
Federal rate multiplied by the MS–LTC–DRG estimated LTCH PPS payments for RY 2010, second half of RY 2010, and the proposed FY
relative weight), we make adjustments for we calculated a blended RY 2010 payment to 2011 fixed loss amount of $19,254 (as
differences in area wage levels, COLA for account for changes in the rate in accordance discussed in section III.A. of the Addendum
Alaska and Hawaii, and SSOs. Furthermore, with sections 1886(m)(3) and (4) of the Act of this supplemental proposed rule).
LTCHs may also receive HCO payments for and section 3401(p) of Public Law 111–148. These impacts reflect the estimated
those cases that qualify based on the Specifically, we applied the RY 2010 ‘‘losses’’ or ‘‘gains’’ among the various
threshold established each year. standard Federal rate (that is, $39,896.65, classifications of LTCHs from the RY 2010 to
To understand the impact of the proposed under which LTCH discharges occurring on FY 2011 based on the proposed payment
changes to the LTCH PPS payments or after October 1, 2009, and through March rates and policy changes presented in this
presented in this supplemental proposed rule 31, 2010 are paid, and $39,794.95, under proposed rule. Table IV illustrates the
on different categories of LTCHs for FY 2011, which LTCH discharges occurring on or after estimated aggregate impact of the LTCH PPS
it is necessary to estimate payments per April 1, 2010 to September 30, 2010 are among various classifications of LTCHs.
discharge for RY 2010 using the rates, factors, paid). For modeling estimated LTCH PPS • The first column, LTCH Classification,
including the FY 2010 GROUPER (Version payments for FY 2011, we applied the identifies the type of LTCH.
27.0) and relative weights, and policies proposed FY 2011 standard Federal rate of • The second column lists the number of
established in the FY 2010 IPPS/RY 2010 $39,560.16, which would be effective for LTCHs of each classification type.
LTCH PPS final rule (74 FR 43945 through LTCH discharges occurring on or after • The third column identifies the number
43994 and 44021 through 44030) and to October 1, 2010, and through September 30, of LTCH cases.
include any changes to payments due to the 2011. • The fourth column shows the estimated
provisions under sections 1886(m)(3) and (4) Furthermore, in modeling estimated LTCH payment per discharge for RY 2010 (as
of the Act and section 3401(p) of Public Law PPS payments for both RY 2010 and FY 2011 described above).
111–148 which affects payments for in this impact analysis, we applied the RY • The fifth column shows the estimated
discharges occurring on or after April 1, 2010 2010 and proposed FY 2011 adjustments for payment per discharge for FY 2011 (as
in RY 2010 (as established in a separate area wage differences and the COLA for described above).
notice published elsewhere in this Federal Alaska and Hawaii. Specifically, we adjusted • The sixth column shows the percentage
Register). It is also necessary to estimate the for area wage differences for estimated RY change in estimated payments per discharge
payments per discharge that would be made 2010 payments using the current LTCH PPS from RY 2010 to FY 2011 for proposed
under the proposed revised LTCH PPS rates, labor-related share of 75.779 percent (74 FR changes to the standard Federal rate (as
discussed in section III.A.3. of the adjustment at § 412.525(c) (as discussed in (Column 5) for all proposed and statutory
Addendum to this supplemental proposed section V.B. of the Addendum to the May 4, changes (and includes the effect of estimated
rule). 2010 FY 2011 IPPS/LTCH PPS proposed changes to HCO and SSO payments).
• The seventh column shows the rule). BILLING CODE 4120–01–P
percentage change in estimated payments per • The eighth column shows the percentage
discharge from RY 2010 to FY 2011 for change in estimated payments per discharge
proposed changes to the area wage from RY 2010 (Column 4) to FY 2011
EP02JN10.152</GPH>
BILLING CODE 4120–01–C of the proposed payment rate and policy effect of changes in documentation and
5. Results changes presented in this supplemental coding in FYs 2008 and 2009 (¥2.5 percent).
Based on the most recent available data (as proposed rule and the May 4, 2010 FY 2011 We noted earlier in this section that for most
described previously for 421 LTCHs, we have IPPS/LTCH PPS proposed rule, as well as categories of LTCHs, as shown in Table IV
estimated increases in HCO and SSO (Column 6), the impact of the proposed
prepared the following summary of the

impact (as shown in Table IV) of the payments. We note that we are proposing a decrease of approximately ¥0.6 percent to
proposed LTCH PPS payment rate and policy ¥0.59 percent increase to the standard the standard Federal rate is projected to
changes presented in this supplemental Federal rate for FY 2011, based on the latest result in approximately a ¥0.5 percent
proposed rule. The impact analysis in Table proposed market basket estimate (2.4 decrease in estimated payments per
IV shows that estimated payments per percent), the ¥0.50 percent reduction to the discharge for all LTCHs from RY 2010 to FY
discharge are expected to increase annual update required under of sections 2011. Because payments to cost-based SSO
approximately 0.3 percent, on average, for all 1886(m)(3) and (4) of the Act, and the cases and a portion of payments to SSO cases
EP02JN10.153</GPH>
LTCHs from RY 2010 to FY 2011 as a result proposed adjustment for the cumulative that are paid based on the ‘‘blend’’ option of
the SSO payment formula at their SSO payments relative to last year. e. Bed Size
§ 412.529(c)(2)(iv) are not affected by the Approximately 10 percent of LTCHs began LTCHs were grouped into six categories
proposed update to the standard Federal rate, participating in Medicare between October based on bed size: 0–24 beds; 25–49 beds;
we estimate that the effect of the proposed 1983 and September 1993. These LTCHs are 50–74 beds; 75–124 beds; 125–199 beds; and
0.59 percent reduction to the standard projected to experience a slightly above greater than 200 beds.
Federal rate would result in a 0.5 percent average increase (0.4 percent) in estimated We project that payments for small LTCHs
reduction on estimated aggregate LTCH PPS payments from RY 2010 to FY 2011. LTCHs (0–24 beds) would experience a 0.8 percent
payments to all LTCH PPS cases, including that began participating in Medicare after increase in payments due to increases in
SSO cases. Furthermore, as discussed October 2002 currently represent their wage index while large LTCHs (200+
previously in this regulatory impact analysis, approximately 38 percent of all LTCHs, and beds) would experience no change in
the average increase in estimated payments are projected to experience an average payments. LTCHs with between 75 and 124
per discharge from the RY 2010 to FY 2011 increase (0.3 percent) in estimated payments beds and between 125 and 199 beds are
for all LTCHs of approximately 0.3 percent from RY 2010 to FY 2011. expected to experience an above average
(as shown in Table IV) was determined by c. Ownership Control increase in payments per discharge from RY
comparing estimated FY 2011 LTCH PPS 2010 to FY 2011 (0.6 percent and 0.5 percent,
payments (using the proposed rates, Other than LTCHs whose ownership
control type is unknown, LTCHs are grouped respectively) primarily due to a larger than
proposed policies and statutory changes average estimated increase in payments from
discussed in this supplemental proposed rule into three categories based on ownership
control type: voluntary, proprietary, and the proposed FY 2011 changes to the area
and in the May 4, 2010 FY 2011 IPPS/LTCH wage adjustment.
PPS proposed rule) to estimated RY 2010 government. Based on the most recent
LTCH PPS payments (as described above in available data, approximately 18 percent of D. Effect on the Medicare Program
section IX.C.3. of this Appendix). LTCHs are identified as voluntary (Table IV).
We expect that, for these LTCHs in the As noted previously, we project that the
a. Location voluntary category, estimated FY 2011 LTCH provisions of this supplemental proposed
Based on the most recent available data, payments per discharge will increase higher rule would result in an increase in estimated
the vast majority of LTCHs are located in than the average (0.6 percent) in comparison aggregate LTCH PPS payments in FY 2011 of
urban areas. Only approximately 6 percent of to estimated payments in RY 2010 primarily approximately $12.9 million (or about 0.3
the LTCHs are identified as being located in because we project an increase in estimated percent) for the 421 LTCHs in our database.
a rural area, and approximately 4 percent of HCO payments and SSO payments to be E. Effect on Medicare Beneficiaries
all LTCH cases are treated in these rural higher than the average for these LTCHs. The
Under the LTCH PPS, hospitals receive
hospitals. The impact analysis presented in majority (71 percent) of LTCHs are identified
payment based on the average resources
Table IV shows that the average percent as proprietary and these LTCHs are projected
consumed by patients for each diagnosis. We
increase in estimated payments per discharge to experience an average increase (0.2
do not expect any changes in the quality of
from RY 2010 to FY 2011 for all hospitals is percent) in estimated payments per discharge
care or access to services for Medicare
0.3 percent for all proposed changes. For from RY 2010 to FY 2011. Finally,
beneficiaries under the LTCH PPS, but we
rural LTCHs, the percent change for all government-owned and operated LTCHs (3
expect that paying prospectively for LTCH
proposed changes is estimated to be 0.7 percent) are expected to experience a higher
services would enhance the efficiency of the
percent, while for urban LTCHs, we estimate than the average increase (0.7 percent) in
Medicare program.
the increase to be 0.2 percent. Large urban estimated payments primarily due to a larger
LTCHs are projected to experience an than the average increase in estimated HCO X. Alternatives Considered
increase of 0.3 percent in estimated payments payments and increases under the proposed This supplemental proposed rule contains
per discharge from RY 2010 to FY 2011, MS–LTC–DRG GROUPER (Version 28) and a range of policies. The preamble of this
while other urban LTCHs are projected to relative weights. supplemental proposed rule provides
experience an increase of 0.1 percent in d. Census Region descriptions of the statutory provisions that
estimated payments per discharge from RY are addressed, identifies policies and
2010 to FY 2011, as shown in Table IV. Estimated payments per discharge for FY
2011 are projected to increase for LTCHs presents rationales for our decisions and,
b. Participation Date located in all regions in comparison to RY where relevant, alternatives that were
LTCHs are grouped by participation date 2010. Of the 9 census regions, we project that considered.
into four categories: (1) Before October 1983; the increase in estimated payments per XI. Overall Conclusion
(2) between October 1983 and September discharge will have the largest positive
1993; (3) between October 1993 and impact on LTCHs in the New England region A. Acute Care Hospitals
September 2002; and (4) after October 2002. (0.6 percent, as shown in Table IV). The Table I of section VI. of this Appendix
Based on the most recent available data, the estimated percent increase in payments per demonstrates the estimated distributional
majority (approximately 49 percent) of the discharge from RY 2010 to FY 2011 for New impact of the IPPS budget neutrality
LTCH cases are in hospitals that began England is largely attributable to the requirements for the proposed MS–DRG and
participating between October 1993 and projected increase in estimated HCO and wage index changes, and for the wage index
September 2002, and are projected to SSO payments (explained in greater detail reclassifications under the MGCRB. Table I
experience nearly the average increase (0.2 above in section IX.A. of this Appendix). also shows an overall decrease of 0.9 percent
percent) in estimated payments per discharge In contrast, LTCHs located in the East in operating payments. We estimate that
from RY 2010 to FY 2011, as shown in Table South Central region are projected to operating payments will decrease by
IV. experience a slight decrease in estimated approximately $929 million in FY 2011. In
In the participation category where LTCHs payments per discharge from RY 2010 to FY addition, we estimates the reporting of
began participating in Medicare before 2011. The average estimated decrease in hospital quality data program costs at $2.4
October 1983, LTCHs are projected to payments of 0.1 percent for LTCHs in the million, a savings of $23 million associated
experience a higher than average percent East South Central region is primarily due to with the proposed HACs policies discussed
increase (0.6 percent) in estimated payments estimated decreases in payments associated in the May 4, 2010 FY 2011 IPPS/LTCH PPS
per discharge from RY 2010 to FY 2011, as with the proposed wage index because 50 proposed rule, an additional $150 million to
shown in Table IV. Approximately 4 percent percent of LTCHs located in this region will hospitals that qualify for an additional
of LTCHs began participating in Medicare have a proposed FY 2011 wage index value payment as provided under section 1109 of
before October 1983. The LTCHs in this that is less than their RY 2010 wage index Public Law 111–152, and all other proposed
category are projected to experience a higher value. Similarly, LTCHs in the South Atlantic operating payment policies described in
than average increase in estimated payments and West North Central are expect to section VII. of this Appendix . These
because of increases in their wage data, experience no change in payments primarily estimates added to our FY 2011 operating
increase under the proposed MS–LTC–DRG due to an estimated decrease in payment estimate of ¥$929 million results in a
GROUPER (Version 28) and relative weights, because of the proposed FY 2011 wage index decrease of $800 million for FY 2011. We
and also because of estimated increases in changes and the decrease in the Federal rate. estimate that capital payments will
experience ¥0.2 percent change in payments we are using the proposed rates, factors, and circulars/a004/a-4.pdf), in Table V below, we
per case, as shown in Table III of section VIII. policies presented in this supplemental have prepared an accounting statement
of this Appendix. We project that there will proposed rule, including proposed updated showing the classification of the
be a $20 million decrease in capital payments wage index values and relative weights, and expenditures associated with the provisions
in FY 2011 compared to FY 2010. The the best available claims and CCR data to of this proposed rule as they relate to acute
proposed cumulative operating and capital estimate the change in payments under the
payments should result in a net decrease of care hospitals. This table provides our best
LTCH PPS for FY 2011. Accordingly, based
$820 million to IPPS providers. The estimate of the change in Medicare payments
on the best available data for the 421 LTCHs
discussions presented in the previous pages, to providers as a result of the proposed
in our database, we estimate that FY 2011
in combination with the rest of this proposed LTCH PPS payments will increase changes to the IPPS presented in this
rule and the May 10, 2010 FY 2011 IPPS/ approximately $13 million (or about 0.3 supplemental proposed rule and the May 10,
LTCH PPS proposed rule, constitute a percent). 2010 FY 2011 IPPS/LTCH PPS proposed rule.
regulatory impact analysis. All expenditures are classified as transfers to
XII. Accounting Statements Medicare providers.
B. LTCHs
Overall, LTCHs are projected to experience A. Acute Care Hospitals
an increase in estimated payments per As required by OMB Circular A–4
discharge in FY 2011. In the impact analysis, (available at http://www.whitehousegov/omb/
TABLE V—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES UNDER THE IPPS FROM FY 2010
TO FY 2011
Category Transfers
Annualized Monetized Transfers .............................................................. ¥$820 million.

From Whom to Whom .............................................................................. Federal Government to IPPS Medicare Providers.
Total ................................................................................................... ¥$820 million.
B. LTCHs that are subject to payment under the LTCH proposed rule as they relate to changes to the
As discussed in section IX. of this PPS. Therefore, as required by OMB Circular LTCH PPS. Table VI provides our best
A–4 (available at http://www.whitehouse.gov/ estimate of the proposed increase in
Appendix, the impact analysis for the
omb/circulars/a004/a-4.pdf), in Table VI Medicare payments under the LTCH PPS as
proposed changes under the LTCH PPS for below, we have prepared an accounting a result of the proposed provisions presented
this proposed rule projects an increase in statement showing the classification of the in this proposed rule based on the data for
estimated aggregate payments of expenditures associated with the provisions the 421 LTCHs in our database. All
approximately $13 million (or about 0.3 of this supplemental proposed rule and the expenditures are classified as transfers to
percent) for the 421 LTCHs in our database May 10, 2010 FY 2011 IPPS/LTCH PPS Medicare providers (that is, LTCHs).
TABLE VI—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES FROM THE 2010 LTCH PPS RATE
YEAR TO THE FY 2011 LTCH PPS
Category Transfers
Annualized Monetized Transfers .............................................................. Positive transfer—Estimated increase in expenditures: $13 million.
From Whom to Whom .............................................................................. Federal Government to LTCH PPS Medicare Providers.
Total ................................................................................................... $13 million.
XIII. Executive Order 12866 of Management and Budget reviewed this

In accordance with the provisions of proposed rule.
Executive Order 12866, the Executive Office [FR Doc. 2010–12567 Filed 5–21–10; 4:15 pm]
DEPARTMENT OF HEALTH AND On March 23, 2010, the Patient and February 13, 2004 (69 FR 7340).
HUMAN SERVICES Protection and Affordable Care Act Such reclassifications were applicable
(Pub. L. 111–148) was enacted. to discharges occurring during the 3-
Centers for Medicare & Medicaid Following enactment of Public Law year period beginning April 1, 2004, and
Services 111–148, the Health Care and Education ending March 31, 2007. Section 106(a)
[CMS–1406–N] Reconciliation Act of 2010, Public Law of the Medicare Improvements and
111–152 (enacted on March 30, 2010), Extension Act, Division B of the Tax
RIN 0938–AQ03 amended certain provisions of Public Relief and Health Care Act of 2006
Law 111–148. (These public laws are (MIEA–TRHCA) extended any
Medicare Program; Hospital Inpatient collectively known as the Affordable geographic reclassifications of hospitals
Prospective Payment Systems for Care Act.) Several of the provisions of that were made under section 508 and
Acute Care Hospitals and Fiscal Year the Affordable Care Act affect the FY that would expire on March 31, 2007. In
2010 Rates and to the Long-Term Care 2010 IPPS and the RY 2010 LTCH PPS. the March 23, 2007 Federal Register (72
Hospital Prospective Payment System However, due to the timing of the FR 3799), we published a notice that
and Rate Year 2010 Rates: Final Fiscal passage of the legislation, we noted in indicated how we were implementing
Year 2010 Wage Indices and Payment the FY 2011 IPPS and LTCH PPS section 106(a) of the MIEA–TRHCA
Rates Implementing the Affordable proposed rule published in the May 4, through September 30, 2007. Section
Care Act 2010 Federal Register (75 FR 23852) 117 of the MMSEA further extended
AGENCY: Centers for Medicare & that we would issue separate Federal section 508 reclassifications and certain
Medicaid Services (CMS), HHS. Register documents addressing the special exceptions through September
provisions of the Affordable Care Act 30, 2008. On February 22, 2008 in the
ACTION: Notice.
that affect our final policies and Federal Register (73 FR 9807), we
SUMMARY: This notice contains the final payment rates for FY 2010 IPPS and the published a notice regarding our
wage indices, hospital reclassifications, RY 2010 LTCH PPS and proposed implementation of section 117 of the
payment rates, impacts, and other policies for FY 2011 under the IPPS and MMSEA. Section 124 of MIPPA, Public
related tables effective for the fiscal year the LTCH PPS. Law 110–275, then further extended
(FY) 2010 hospital inpatient prospective This notice addresses the provisions section 508 reclassifications and certain
payment systems (IPPS) and rate year of the Affordable Care Act that impact special exceptions through September
2010 long-term care hospital (LTCH) the FY 2010 IPPS/RY 2010 LTCH PPS 30, 2009. Final rates incorporating these
prospective payment system (PPS). The final wage index tables, rates, and MIPPA extensions were published in a
rates, tables, and impacts included in impacts. Federal Register notice on October 3,
this notice reflect changes required by II. Final FY 2010 Wage Indices and 2008 (73 FR 57888).
or resulting from the implementation of Section 3137(a) of Public Law 111–
Payment Rates
several provisions of the Patient 148, as amended by section 10317 of
Protection and Affordable Care Act and A. Final FY 2010 Hospital Wage Index Public Law 111–148 has now extended
the Health Care and Education Reclassifications/Redesignations the hospital reclassification provisions
Reconciliation Act of 2010. These of section 508 and certain special
1. Section 508 Extension
provisions require the extension of the exceptions through September 30, 2010
Section 3137(a) of Public Law 111– (FY 2010). Furthermore, section
expiration date for certain geographic 148, as amended by section 10317 of
reclassifications and special exception 3137(a)(2)(B) of Public Law 111–148
Public Law 111–148, extends through contains a new provision not previously
wage indices through September 30, the end of FY 2010 wage index
2010; and certain market basket updates included in prior mid-year extensions to
reclassifications under section 508 of section 508 requiring that ‘‘beginning on
for the IPPS and LTCH PPS. the Medicare Prescription Drug April 1, 2010, in determining the wage
DATES: Effective Date: The revised Improvement and Modernization Act of index applicable to hospitals that
standard Federal rates described in this 2003 (MMA) (Pub. L. 108–173) and qualify for wage index reclassification,
notice are effective for payment years certain special exceptions (for example, the Secretary shall include the average
beginning October 1, 2009. Hospitals are those special exceptions contained in hourly wage data of hospitals whose
paid based on the rates published in this the final rule promulgated in the reclassification was extended pursuant
notice for discharges on or after April 1, Federal Register on August 11, 2004 (69 to the amendment made by paragraph
2010. FR 49105 and 49107) extended under (1) only if including such data results in
FOR FURTHER INFORMATION CONTACT: Tzvi section 117 of the Medicare, Medicaid, a higher applicable reclassified wage
Hefter, (410) 786–4487. and SCHIP Extension Act of 2007 index.’’ Finally, section 3401 of Public
SUPPLEMENTARY INFORMATION: (MMSEA) (Pub. L. 110–173)) and further Law 111–148, as amended by section
extended under section 124 of the 10319 of Public Law 111–148 and
I. Background Medicare Improvements for Patients and section 1105 of Public Law 111–152,
The final rule setting forth the Providers Act of 2008 (MIPPA) (Pub. L. imposes a 0.25 percent decrease in the
Medicare fiscal year (FY) 2010 hospital 110–275). market basket calculated under section
inpatient prospective payment systems Under section 508 of Public Law 108– 1886(b)(3)(B) of the Social Security Act.
(IPPS) for acute care hospitals and the 173, a qualifying hospital could appeal As a result of these changes, we have
rate year (RY) 2010 long-term care the wage index classification otherwise recalculated certain wage indexes,
hospital (LTCH) prospective payment applicable to the hospital and apply for recalculated the standardized amounts,
jlentini on DSKJ8SOYB1PROD with NOTICES2
system (PPS) final rule (hereinafter reclassification to another area of the and revised budget neutrality factors
referred to as the FY 2010 IPPS/RY 2010 State in which the hospital is located (including rural floor budget neutrality)
LTCH PPS final rule) was published in (or, at the discretion of the Secretary), to to account for the new legislation.
the August 27, 2009 Federal Register an area within a contiguous State. We For hospitals receiving an extension
(74 FR 43754) and subsequently implemented this process through of their section 508 reclassifications or
corrected in an October 7, 2009 notice notices published in the Federal special exceptions, we have used the
(74 FR 51496). Register on January 6, 2004 (69 FR 661), rates contained in the August 27, 2009
Federal Register, and as corrected in the of this notice lists the urban areas with 1886(b)(3)(B)(xii) of the Act, as added
October 7, 2009 Federal Register, unless hospitals receiving the State rural floor and amended by these sections of the
the rates published in this notice result or imputed rural floor wage index. Table Affordable Care Act, further states that
in a higher applicable wage index. 9B of the Addendum of this notice lists the application of this adjustment ‘‘may
Those section 508 and special exception hospitals that are section 508 and result in the applicable percentage
providers that are receiving an special exception providers which have increase described in clause (i) being
extension through September 30, 2010 their reclassifications extended until less than 0.0 for a fiscal year.’’ Although
are shown in Table 9B of the Addendum September 30, 2010. these amendments modify the
to this notice. Please note we are not applicable percentage increase
making reclassification decisions on B. Inpatient Hospital Market Basket
applicable to the FY 2010 rates under
behalf of hospitals in this extension as Update
the IPPS, section 3401(p) of Public Law
we did with the MIPPA provision. 1. FY 2010 Inpatient Hospital Update 111–148 states that the amendments
(Because MIPPA was enacted prior to In accordance with section made by section 3401(a) of Public Law
the finalization of the FY 2009 rates, we 1886(b)(3)(B)(i) of the Act, each year we 111–148 shall not apply to discharges
were able to modify reclassifications update the national standardized occurring prior to April 1, 2010. In other
that had not yet taken effect. In contrast, amount for inpatient operating costs by words, for discharges occurring on or
the Affordable Care Act has been a factor called the ‘‘applicable after October 1, 2009 and prior to April
enacted in the middle of the fiscal year, percentage increase.’’ Prior to enactment 1, 2010, payment for a hospital’s
and reclassifications are already in inpatient operating costs under the IPPS
of the Affordable Care Act, section
effect). As explained in this notice, the will be based on the applicable
1886(b)(3)(B)(i)(XX) of the Act set the
intervening Affordable Care Act percentage increase set forth in the FY
applicable percentage increase for FY
legislation affects only those labor 2010 IPPS/RY 2010 LTCH PPS final
2007 and each subsequent fiscal year as
market areas including hospitals whose rule.
equal to the rate-of-increase in the
reclassifications/special exceptions are Consistent with section 3401(p) of
hospital market basket for IPPS
extended, or areas to which such Public Law 111–148, for the first half of
hospitals in all areas, subject to the
hospitals were reclassified for FY 2010. FY 2010 (that is, discharges on or after
When originally implementing hospital submitting quality information
under rules established by the Secretary October 1, 2009 through March 30,
section 508 of the MMA, we required
in accordance with section 2010), payment will be made based on
each hospital to submit a request in
writing by February 15, 2004, to the 1886(b)(3)(B)(viii) of the Act. For the applicable percentage increase
Medicare Geographic Classification hospitals that do not provide these data, equaling the market basket index for
Review Board (MGCRB), with a copy to the update is equal to the market basket IPPS hospitals (which is defined in 42
CMS. We will neither require nor accept percentage increase less an additional CFR 413.40(a)(3)) in all areas for
written requests for the extension 2.0 percentage points. In accordance hospitals that submit quality data in
required by the Affordable Care Act, with these statutory provisions, in the accordance with our rules, and the
since that legislation simply provides a FY 2010 IPPS/RY 2010 LTCH PPS final market basket index for IPPS hospitals
1-year continuation through the end of rule (74 FR 43850), we finalized an in all areas less 2.0 percentage for
FY 2010 for any section 508 applicable percentage increase equal to hospitals that fail to submit quality data
reclassifications and special exceptions the full market basket update of 2.1 in accordance with our rules. As noted
wage indexes that expired September percent based on IHS Global Insight, previously, in the FY 2010 IPPS/RY
30, 2009. Inc.’s second quarter 2009 forecast of 2010 LTCH PPS final rule, we
the FY 2010 market basket increase, calculated that the full market basket
2. FY 2010 Final Wage Indices provided the hospital submits quality update equals 2.1 percent based on IHS
The final wage index values for FY data in accordance with our rules. For Global Insight, Inc.’s second quarter
2010 (except those for hospitals hospitals that do not submit quality 2009 forecast of the FY 2010 market
receiving wage index adjustments under data, the FY 2010 update to the basket increase. Consistent with section
section 505 of Pub. L. 108–173) are operating standardized amount equals 1886(b)(3)(B)(xii) of the Act, as added
included in Tables 4A, 4B, and 4C of the 0.1 percent (that is, the FY 2010 and amended by sections 3401(a) and
Addendum to this notice and are posted estimate of the market basket rate-of- 10319(a) of Public Law 111–148 and
on our Web site at http:// increase minus 2.0 percentage points). section 1105 of Public Law 111–152,
www.cms.hhs.gov/AcuteInpatientPPS/. Sections 3401(a) and 10319(a) of and section 3401(p) of Public Law 111–
For hospitals that are receiving a wage Public Law 111–148 and section 1105 of 148, payment for discharges during the
index adjustment under section 505 of Public Law 111–152, amend section second half of FY 2010 (discharges on
Public Law 108–173, only one county’s 1886(b)(3)(B) of the Act. Specifically, or after April 1, 2010 through September
adjustment factor changed due to the section 1886(b)(3)(B)(xii)(I) of the Act, 30, 2010), will reflect the revised FY
implementation of section 3137(a)(2)(B) as added and amended by these sections 2010 rate, which includes the 0.25
of Public Law 111–148; therefore only of the Affordable Care Act, requires the percentage point reduction for hospitals
that revised factor is shown in Secretary to reduce the applicable that submit quality data in accordance
abbreviated Table 4J of the Addendum percentage increase for FY 2010 by 0.25 with our rules. For those hospitals that
to this notice. In addition, Table 2 of the percentage point, subject to the hospital fail to submit quality data in accordance
Addendum to this notice includes the submitting quality information under with our rules, we are reducing the
final wage index values and rules established by the Secretary in market basket index for IPPS hospitals
occupational mix adjusted average accordance with section by an additional 2.0 percentage points
hourly wage (from the FYs 2004, 2005, 1886(b)(3)(B)(viii) of the Act. For (which is in addition to the 0.25
and 2006 cost reporting periods) for hospitals that do not provide these data, percentage point reduction required by
each hospital. Table 4D–1 of the the update is equal to the market basket section 1886(b)(3)(B)(xii) of the Act, as
Addendum of this notice lists the State percentage increase minus 0.25 added and amended by sections 3401(a)
rural floor budget neutrality factors for percentage point less an additional and 10319(a) of Pub. L. 111–148 and
FY 2010. Table 4D–2 of this Addendum 2.0 percentage points. Section section 1105 of Pub. L. 111–152).
Therefore, based on IHS Global Insight, 152, in a supplemental proposed rule operating standardized amount remains
Inc.’s second quarter 2009 forecast of published elsewhere in this Federal 2.1 percent (that is, the FY 2010
the FY 2010 market basket increase, the Register. estimate of the market basket rate-of-
FY 2010 applicable percentage increase, increase).
2. FY 2010 Puerto Rico Hospital Update
on which payment for discharges
Puerto Rico hospitals are paid a C. Changes to Payment Rates for IPPS
occurring in the second half of FY 2010
blended rate for their inpatient for Capital-Related Costs for FY 2010
is based, is 1.85 percent (that is, the FY
2010 estimate of the market basket rate- operating costs based on 75 percent of Although the Affordable Care Act
of-increase of 2.1 percent minus 0.25 the national standardized amount and does not directly the amend provisions
percentage points) for hospitals in all 25 percent of the Puerto Rico-specific regarding payment for the IPPS for
areas, provided the hospital submits standardized amount. Section capital-related costs, in section II.E.2. of
quality data in accordance with our 1886(d)(9)(C)(i) of the Act is the basis this notice we are establishing revised
rules. For hospitals that do not submit for determining the annual adjustment capital IPPS standard Federal rates for
quality data, the payment update to the to the Puerto Rico-specific standardized FY 2010. The revised FY 2010 capital
operating standardized amount is ¥0.15 amount. Section 1886(d)(9)(C)(i) of the Federal rates are effective for discharges
percent (that is, the adjusted FY 2010 Act provides that the Puerto Rico occurring on or after April 1, 2010,
estimate of the market basket rate-of- standardized amount shall be adjusted consistent with section 3401(p) of
increase of 1.85 percent minus 2.0 in accordance with the final Public Law 111–148. This is necessary
percentage points). As provided by determination of the Secretary under because the operating IPPS market
these provisions, we are proposing to section 1886(e)(4) of the Act. Section basket and wage index changes required
revise 42 CFR 412.64(d) in a 1886(e)(4)(A) of the Act in turn directs by the provisions of this legislation
supplemental proposed rule published the Secretary to recommend an (discussed above in section II.A. of this
elsewhere in this Federal Register. appropriate change factor for inpatient notice) affect the budget neutrality
hospital services for discharges in that adjustment factor for changes in DRG
Section 1886(b)(3)(B)(iv)(IV) of the fiscal year, taking in to account amounts
Act provides that the applicable classifications and weights and the
necessary for the efficient and effective geographic adjustment factor (GAF)
percentage increase applicable to the delivery of medically appropriate and
hospital-specific rates for SCHs and since the GAF values are derived from
necessary care of high quality, as well the wage index values (see § 412.316(a)).
MDHs equals the applicable percentage as the recommendations of MedPAC. In
increase set forth in section In addition, these changes necessitate a
order to maintain consistency between revision to the outlier payment
1886(b)(3)(B)(i) of the Act (that is, the the portion of the rates paid to Puerto
same update factor as for all other adjustment factor since a single set of
Rico hospitals based on the national thresholds is used to identify outlier
hospitals subject to the IPPS). Because standardized amount and the portion
the statute defines the applicable cases for both inpatient operating and
based on the Puerto Rico-specific inpatient capital-related payments (see
percentage increase for SCHs and MDHs standardized rate, beginning in FY 2004
as equal to the applicable percentage § 412.312(c)). The outlier thresholds are
we have set the update to the Puerto set so that operating outlier payments
increase under section 1886(b)(3)(B)(i) Rico-specific operating standardized
of the Act for other IPPS hospitals, the are projected to be 5.1 percent of total
amount equal to the update to the operating IPPS DRG payments. Section
update to the hospital specific rates for national operating standardized amount
SCHs and MDHs is also subject to the 412.308(c)(2) provides that the standard
for all IPPS hospitals. This policy is Federal rate for inpatient capital-related
amendments to section 1886(b)(3)(B)(i) reflected in our regulations at 42 CFR
of the Act made by sections 3401(a) and costs be reduced by an adjustment factor
412.211. equal to the estimated proportion of
10319(a) of Public Law 111–148 and The amendments to section
section 1105 of Public Law 111–152, as capital-related outlier payments to total
1886(b)(3)(B) of the Act by sections
well as to section 3401(p) of Public Law inpatient capital-related PPS payments.
3401(a) and 10319(a) of Public Law
111–148. Accordingly, for hospitals The revised capital IPPS standard
111–148 and section 1105 of Public Law
paid for their inpatient operating costs Federal rates for FY 2010 (effective for
111–152, affect only the update factor
on the basis of a hospital-specific rate, applicable to the national standardized discharges occurring on or after April 1,
the rates paid to such hospitals for rate for IPPS hospitals and the hospital- 2010) are discussed in section II.E.2. of
discharges occurring during the first specific rates; they do not mandate any this notice.
half of FY 2010 will be based on an revisions to the update factor applicable D. Long-Term Care Hospital Market
annual update estimated to be 2.1 to the Puerto Rico-specific standardized Basket Update and Other Changes
percent for hospitals submitting quality amount. Rather, as noted above, sections
data or 0.1 percent for hospitals that fail 1886(d)(9)(C)(i) and (e)(4) of the Act 1. Background
to submit quality data; and the rates direct us to adopt an appropriate change In the FY 2010 IPPS/RY 2010 LTCH
paid to such hospitals for the second factor for the FY 2010 Puerto Rico- PPS final rule that appeared in the
half of FY 2010 will be based on the specific standardized amount, which we August 27, 2009 Federal Register (74 FR
revised FY 2010 applicable percentage did in the FY 2010 IPPS/LTCH PPS final 43754), we established policies,
increase that is estimated to be 1.85 rule after notice and comment payment rates, and factors for
percent for hospitals submitting quality rulemaking. Therefore, we do not determining payments under the LTCH
data or ¥0.15 percent for hospitals that believe we have the authority to revise PPS for RY 2010 (October 1, 2009
fail to submit quality data. Similarly, we the FY 2010 update factor for the Puerto through September 30, 2010). Below we
are proposing to revise 42 CFR Rico-specific operating standardized discuss revised RY 2010 LTCH PPS
412.73(c)(15), 42 CFR 412.75(d), 42 CFR amount equal to the update factor rates and factors consistent with the
412.77(e), 42 CFR 412.78(e), and 42 CFR applicable to the national standardized provisions of section 1886(m)(3) as
412.79(d) to reflect the changes made to amount or the hospital-specific rates added by section 3401(c) of Public Law
section 1886(b)(3)(B) by sections 3401(a) (that is the market basket minus 0.25 111–148, section 1886(m)(4) as added
and 10319(a) of Public Law 111–148 percentage points). Accordingly, the FY by section 3401(c) of Public Law 111–
and section 1105 of Public Law 111– 2010 update to the Puerto Rico-specific 148 and amended by section 10319(b) of
Public Law 111–148, as further increase, we also applied a ¥0.5 methodology used in the FY 2010 IPPS/
amended by section 1105(b) of Public percent adjustment to account for the RY 2010 LTCH PPS final rule (74 FR
Law 111–152, as well as section 3401(p) increase in case-mix due to changes in 43966 through 43967) show that this
of Public Law 111–148. Section documentation and coding practices revision to the RY 2010 LTCH PPS
1886(m)(3)(A) of the Act provides that that do not reflect increased patient standard Federal rate resulting from the
in implementing the system described severity of illness from a prior period revision to the RY 2010 annual update
in paragraph (1) [of 1886(m) of the Act] (that is, FY 2007). required by the Affordable Care Act,
for rate year 2010 and each subsequent As indicated above, section 3401(c) of would not change the RY 2010 budget
rate year, any annual update to the Public Law 111–148 adds section neutrality factor originally established
standard Federal rate for discharges for 1886(m)(3)(A)(ii) of the Act which in the FY 2010 IPPS/RY 2010 LTCH PPS
the hospital during the rate year, shall specifies that for RY 2010 and final rule. Therefore, the FY 2010 MS–
be reduced (i) for rate year 2012 and subsequent rate years, any update to the LTC–DRG relative weights remain
each subsequent rate year, by the standard Federal rate shall be reduced, unchanged from those established in
productivity adjustment described in for each of RYs 2010 through 2019, by Table 11 of the FY 2010 IPPS/RY 2010
section 1886(b)(3)(B)(xi)(II) [of the Act]; the other adjustment specified in new LTCH PPS final rule (74 FR 44183
and (ii) for each of the rate years 2010 section 1886(m)(4) of the Act. through 44192).)
through 2019, by the other adjustment Specifically, newly added section
described in paragraph (4) [of 1886(m) E. Final FY 2010 Prospective Payment
1886(m)(4)(A) of the Act requires a 0.25 Systems Payment Rates for Hospital
of the Act]. Section 1886(m)(3)(A) of the percentage point reduction to the
Act on its face explicitly provides for a Inpatient Operating and Capital Related
annual update for RY 2010. Costs
revised annual update to the standard Consequently, the market basket update
Federal rate beginning RY 2010, thus under the LTCH PPS for RY 2010 is 2.25 1. Final FY 2010 Prospective Payment
resulting in a single revised RY 2010 percent (that is, the second quarter 2009 Rates for Hospital Inpatient Operating
standard Federal rate. With respect to forecast estimate of the RY 2010 LTCH Costs
section 3401(p) of Public Law 111–148, PPS market basket increase of 2.5 In the FY 2010 IPPS and RY 2010
this section provides that, percent minus the 0.25 percentage LTCH PPS final rule published in the
notwithstanding the previous provisions
points required by sections Federal Register on August 27, 2009 (74
of this section, the amendments made
1886(m)(3)(A)(ii) and (m)(4)(A) of the FR 43754), we established our
by subsections (a), (c), and (d) shall not
Act). (We note that to determine the methodology to determine the policies,
apply to discharges occurring before
revised standard Federal rate for RY payment rates and factors for
April 1, 2010. When read in conjunction
2010 in this notice, we applied the determining payments under the IPPS
we believe section 1886(m)(3)(A) of the
reduced market basket update (2.25 for the entire FY 2010 (74 FR 44002
Act and section 3401(p) of Public Law
percent) as well as a ¥0.5 percent through 44014). Some of these rates also
111–148 provide for a single revised RY
adjustment to account for the increase were corrected, as reflected in an
2010 standard Federal rate; however, for
in case-mix due to changes in October 7, 2009 correction notice (74 FR
payment purposes, discharges occurring
on or after October 1, 2009 and before documentation and coding practices 51496). Below we establish revised FY
April 1, 2010, simply will not be based that do not reflect increased patient 2010 IPPS rates and factors consistent
on the revised RY 2010 standard Federal severity of illness from a prior period with the provisions of section 3137(a) of
rate. In other words, for discharges (FY 2007) that we established in the FY Public Law 111–148, as amended by
occurring on or after October 1, 2009 2010 IPPS/RY 2010 LTCH PPS final rule section 10319(a) of Public Law 111–148
through March 31, 2010, LTCH PPS (74 FR 43972).) In addition, in section and section 1105 of Public Law 111–
payments will be based on the payment II.F. of the Addendum of this notice, 152, and section 1886(b)(3)(B), as
rates and factors established in the FY this revision to the standard Federal rate amended by sections 3401(a) and
2010 IPPS/RY 2010 LTCH PPS final rule for RY 2010 requires us to revise the 10310(a) of Public Law 111–148 and
(see (74 FR 43754)). high cost outlier fixed-loss amount for section 1105 of Public Law 111–152.
RY 2010, under which the discharges Although these changes modify the FY
2. Market Basket Update for LTCHs for occurring on or after April 1, 2010 will 2010 rates under the IPPS, in
RY 2010 be evaluated, in order to maintain the accordance with section 3401(p) of
As discussed in section VII.C.2. of the requirement that the fixed-loss amount Public Law 111–148, the revised IPPS
preamble of the FY 2010 IPPS/RY 2010 will result in estimated total outlier payment rates and factors do not apply
LTCH PPS final rule (74 FR 43967 payments being projected to be equal to to discharges occurring prior to April 1,
through 43968), we continued to use the 8 percent of projected total LTCH PPS 2010. In other words, for discharges
FY 2002-based rehabilitation, payments. (We also note that we occurring on or after October 1, 2009
psychiatric, long-term care (RPL) determined that it is not necessary to through discharges on or before March
hospital market basket under the LTCH revise the FY 2010 MS–LTC–DRG 31, 2010, IPPS payments will be based
PPS for RY 2010. Also, in that final rule, relative weights as a result of the change on the payment rates and factors
we stated that at that time, the most to the RY 2010 LTCH PPS standard established in the FY 2010 IPPS/RY
recent estimate of the increase in the Federal rate resulting from the revision 2010 LTCH PPS final rule, and for
LTCH PPS market basket for RY 2010 to the RY 2010 annual update required discharges on or after April 1, 2010
was 2.5 percent. This increase is based by the Affordable Care Act. Although through discharges on or before
on IHS Global Insight, Inc.’s second the standard Federal rate is used in our September 30, 2010 payments will be
quarter 2009 forecast of the FY 2002- established methodology for updating based on the FY 2010 payment rates and
based RPL market basket increase for RY the annual update to the MS–LTC–DRG factors outlined in this notice.
2010. We note, as discussed in the FY classifications and relative weights in a The 0.25 percentage point reduction
2010 IPPS/RY 2010 final rule (74 FR manner such that estimated aggregate to the applicable percentage increase for
44022), in determining the update to the LTCH PPS payments would be FY 2010 (as required by section
standard Federal rate for RY 2010, in unaffected, our payment simulations 1886(b)(3)(B)(xii), as added and
addition to the full market basket using the same budget neutrality amended by sections 3401(a) and
section 10319(a) of Pub. L. 111–148 and 0.25 percentage points for hospitals that 2.1 percent (that is, the FY 2010
section 1105 of Pub. L. 111–152) affects submit quality data in accordance with estimate of the market basket rate-of-
all the budget neutrality factors our rules. For those hospitals that fail to increase).
described below. In general, to compute submit quality data in accordance with
b. Final FY 2010 Budget Neutrality
the budget neutrality factors that are our rules, the market basket index for Adjustments Factors for Recalibration of
applied to the standardized amounts, in IPPS hospitals will continue to be DRG Weights and Updated Wage Index
our simulations of FY 2010 payments reduced by an additional 2.0 percentage
we used the standardized amount points (which is in addition to the 0.25 Using the methodology finalized in
updated by the market basket update percentage point reduction required by the FY 2010 IPPS/LTCH PPS final rule
percentage (for FY 2010). Because the new section 1886(b)(3)(B)(xii) of the for calculating budget neutrality, for FY
statute now requires a reduction to the Act). Therefore, based on IHS Global 2010 (74 FR 44005), we are setting the
FY 2010 market basket update, it is Insight, Inc.’s second quarter 2009 following budget neutrality factors in
necessary to recompute the FY 2010 forecast of the FY 2010 market basket order to account for the changes made
budget neutrality factors applied to the increase, the revised FY 2010 applicable by the Affordable Care Act: A DRG
standardized amount by resimulating percentage increase is 1.85 percent (that reclassification and recalibration factor
payments with the revised FY 2010 is, the FY 2010 estimate of the market of 0.997935 and a budget neutrality
market basket update. basket rate-of-increase of 2.1 percent factor of 1.000418 for changes to the
To calculate the FY 2010 revised minus 0.25 percentage points) for wage index. We multiplied the DRG
payment rates and factors, we used the hospitals in all areas, provided the reclassification and recalibration budget
same methodology from the FY 2010 hospital submits quality data in neutrality factor of 0.997935 by the
IPPS/RY 2010 LTCH PPS final rule (74 accordance with our rules. For hospitals budget neutrality factor of 1.000418 for
FR 44002 through 44014) incorporating that do not submit quality data, the changes to the wage index to determine
the additional reduction required by payment update to the operating the DRG reclassification and
section 1886(b)(3)(B)(xii) of the Act (as standardized amount is ¥0.15 percent recalibration and updated wage index
discussed below). We note that in (that is, the adjusted FY 2010 estimate budget neutrality factor of 0.998352 (as
calculating the budget neutrality factors of the market basket rate-of-increase of required by sections 1886(d)(4)(C)(iii)
discussed below, we included the wage 1.85 percent minus 2.0 percentage and 1886(d)(3)(E)(i) of the Act).
data corrections discussed in the FY points). Hospitals will be paid based on Consistent with section 3401(p) of
2010 IPPS/LTCH PPS final rule Public Law 111–148, we applied these
these revised payment update amounts
correction notice (74 FR 51497 through revised factors to the Federal rate on
for discharges occurring in the second
51498). which payments are made for
half of FY 2010. We note that in order
discharges occurring on or after April 1,
a. Updating the Average Standardized to implement the requirements of
2010.
Amounts section 1886(b)(3)(B) of the Act, as
As explained in section II.B. of this amended by sections 3401(a) and c. Final FY 2010 Reclassified Hospitals-
notice, in accordance with section 10319(a) of Public Law 111–148 and Budget Neutrality Adjustment
3401(p) of Public Law 111–148, for the section 1105 of Public Law 111–152, we Using the methodology finalized in
first half of FY 2010 (that is, discharges are proposing to revise 42 CFR 412.64(d) the FY 2010 IPPS/LTCH PPS final rule
on or after October 1, 2009 through in a supplemental proposed rule for calculating reclassification budget
March 30, 2010), payments will be published elsewhere in this Federal neutrality (74 FR 44005 through 44006),
based on an applicable percentage Register. we computed the following factor in
increase that is equal to the market The amendments to section order to account for the changes made
basket index for IPPS hospitals (which 1886(b)(3)(B) of the Act by sections by the Affordable Care Act: A 0.991985
is defined in 42 CFR 413.40(a)(3)) in all 3401(a) and 10319(a) of Public Law factor for reclassification budget
areas for hospitals that submit quality 111–148 and section 1105 of Public Law neutrality, as required by section
data in accordance with our rules, and 111–152, affect only the update factor 1886(d)(8)(D) of the Act. Consistent with
the market basket index for IPPS applicable to the national standardized sections 3137(a) and 3401(p) of the
hospitals in all areas less 2.0 percentage rate for IPPS hospitals and the hospital- Public Law 111–148, we applied this
for hospitals that fail to submit quality specific rates; they do not mandate any factor to the Federal rate that is applied
data in accordance with our rules. In the revisions to the update factor applicable in determining payments for FY 2010
FY 2010 IPPS/RY 2010 LTCH PPS final to the Puerto Rico-specific standardized discharges occurring on or after April 1,
rule (74 FR 44235), we calculated that amount. Rather, sections 1886(d)(9)(C)(i) 2010.
the full market basket update equals 2.1 and (e)(4) of the Act direct us to adopt We note, as discussed in section II.A.
percent based on IHS Global Insight, an appropriate change factor for the FY of this notice, section 3137(a) of Public
Inc.’s second quarter 2009 forecast of 2010 Puerto Rico-specific standardized Law 111–148, as amended by section
the FY 2010 market basket increase. For amount, which we did in the FY 2010 10317 of Public Law 111–148 has now
the second half of FY 2010 (discharges IPPS/RY 2010 LTCH PPS final rule after extended the hospital reclassification
on or after April 1, 2010 through notice and consideration of public provisions of section 508 and certain
September 30, 2010), in accordance comments. Therefore, we do not believe special exceptions through September
with section 1886(b)(3)(B)(xii) of the that we have the authority to revise the 30, 2010 (FY 2010). Consistent with
Act, as added and amended by sections FY 2010 update factor for the Puerto section 106(a) of Public Law 109–432,
3401(a) and 10319(a) of Public Law Rico-specific operating standardized payments for providers reclassified
111–148 and section 1105 of Public Law amount equal to the update factor under section 508 and under the special
111–152, as well as section 3401(p) of applicable to the national standardized exception policy are not budget neutral.
Public Law 111–148, hospitals are paid amount or the hospital-specific rates However, section 3137(a)(2)(B) of Public
based on the revised FY 2010 applicable (that is the market basket minus 0.25 Law 111–148 requires us to also
percentage increase. That amount is percentage points). Accordingly, the FY recalculate the reclassification wage
equal to the market basket index for 2010 update to the Puerto Rico-specific indices of areas by excluding those
IPPS hospitals in all areas reduced by operating standardized amount remains hospitals whose section 508
reclassifications and special exceptions blended wage index was determined by indexes that are applied in determining
wage indices have been extended, if adding 50 percent of the wage index payments for FY 2010 discharges
doing so would increase the adjusted by applying the State-level occurring on or after April 1, 2010.
reclassification wage index. These rural and imputed floor budget
e. Final FY 2010 Rural Community
payments of providers located in section neutrality adjustment and 50 percent of
Hospital Demonstration Program
508 and special exception areas (that are the wage index adjusted by applying the
not section 508 or special exception national budget neutrality adjustment. Adjustment
providers), as well as hospitals Similar to the budget neutrality Using the methodology finalized in
reclassified to those areas, are subject to factors above, we included the corrected the FY 2010 IPPS/LTCH PPS final rule
budget neutrality. Therefore, we wage data from the FY 2010 IPPS/LTCH and accounting for the projected total
included the additional payments PPS final rule correction notice and the annual impact of $27,141,815 for FY
associated with the increased payments post reclassified wage index changes 2010 (74 FR 44012; and reflecting the
being made to such hospitals as a result that resulted from the extension of the provisions of the Affordable Care Act)
of section 3137(a) of Public Law 111– hospital reclassification provisions of we computed a budget neutrality
148 in our calculation of the reclassified section 508 and certain special adjustment of 0.999739 for the rural
wage index budget neutrality factor, exceptions in our calculation of the FY community hospital demonstration, in
pursuant to section 1886(d)(8)(D) of the 2010 rural and imputed floor budget order to satisfy section 410A(c)(2) of
Act. This section requires that aggregate neutrality factors. We note that section Public Law 108–173. We note, after re-
payments under section 1886 of the Act 3137(a)(2)(B) of Public Law 111–148, as simulating payments reflecting the
do not increase as a result of the costs amended by section 10317 of Public provisions of the Affordable Care Act,
associated with reclassifications. Our Law 111–148, requires that beginning the adjustment factor in this notice is
analysis relied on the most up-to-date April 1, 2010, we include the average
the same as the adjustment factor
wage data, that is, the corrected wage hourly wage data of hospitals whose
computed in the FY 2010 IPPS/LTCH
indexes from the FY 2010 IPPS/RY 2010 section 508 reclassifications and special
PPS final rule. Consistent with section
LTCH PPS correction notice (74 FR exception wage indices were extended,
3401(p) of Public Law 111–148, we
51497 through 51498) in the calculation only if doing so results in a higher
applied this factor to the Federal rate
of the reclassified wage index budget reclassification wage index. We
that is applied in determining payments
neutrality factor. Guidance to FIs and interpret this language as referring to the
for FY 2010 discharges occurring on or
A/B MACs will be issued separate from reclassification wage index that is
after April 1, 2010.
this notice for hospital wage indexes calculated pursuant to section
that are increasing as a result of the 1886(d)(8)(C) of the Act, as that is the f. Final FY 2010 Outlier Fixed-Loss Cost
extension of section 508 reclassification wage index calculation Threshold
reclassifications and special exceptions. that employs average hourly wage data.
We do not interpret the language as We are revising the FY 2010 outlier
d. Final FY 2010 Rural and Imputed referring to the reclassification wage fixed-loss cost threshold due to the
Floor Budget Neutrality index after it is subsequently adjusted change in the market basket and other
We make an adjustment to the wage for rural/imputed floor budget budget neutrality factors described
index to ensure that aggregate payments neutrality, as that budget neutrality above. Using the methodology we
to hospitals are not affected by the rural adjustment is not based upon average finalized in the FY 2010 IPPS/RY 2010
floor under section 4410 of the Balanced hourly wage data, and is not made to LTCH PPS final rule (74 FR 44007
Budget Act of 1997 (BBA) (Pub. L. 105– adjust for the effects of reclassifications. through 44011) and taking into account
33) and the imputed floor under Using the methodology finalized in the provisions of the Affordable Care
§ 412.64(h)(4) of the regulations. As the FY 2010 IPPS/LTCH PPS final rule Act as discussed above, we are
discussed in section III.B. of the (74 FR 44006), we calculated a national finalizing an outlier fixed-loss cost
preamble to the FY 2009 IPPS final rule rural and imputed floor budget threshold for FY 2010 equal to the
(73 FR 48570 through 48574), we neutrality adjustment factor of 0.996686. prospective payment rate for the DRG,
adopted State-level budget neutrality for Each State’s rural or imputed floor plus any IME and DSH payments, and
the rural and imputed floors, effective budget neutrality adjustment can be any add-on payments for new
beginning with the FY 2009 wage index. found in table 4D–1 of the Addendum technology, plus $23,135. Consistent
In response to the public’s concerns and of this notice. Additionally, in order to with section 3401(p) of the Public Law
taking into account the potentially ensure that national payments overall 111–148, we are applying this threshold
significant payment cuts that could remain budget neutral after application for FY 2010 discharges occurring on or
occur to hospitals in some States if we of the blended national and state rural after April 1, 2010.
implemented this change with no and imputed floors, an additional g. Final FY 2010 Outlier Adjustment
transition, we phased in, over a 3-year adjustment factor of 1.000010 must be Factors
period, the transition from a national applied to the blended post reclassified,
rural floor budget neutrality adjustment post-floor (including budget neutrality) The FY 2010 outlier adjustment
on the wage index to a State-level rural wage indices. Consistent with section factors that are applied to the FY 2010
floor budget neutrality adjustment on 3401(p) of Public Law 111–148, we standardized amount for the FY 2010
the wage index. For FY 2010, the applied these factors to the wage outlier threshold are as follows:
Operating
Capital federal
standardized rate
amounts
National ............................................................................................................................................................ 0.948998 0.947766

Puerto Rico ...................................................................................................................................................... 0.957417 0.935787
Consistent with section 3401(p) of the Addendum to this notice contain the and final standardized amounts
Public Law 111–148, we applied these final national standardized amount that reflecting the additional 2.0 percentage
revised factors to the Federal rate on we are applying to all hospitals, except point reduction to the update applicable
which payments are made for hospitals in Puerto Rico. The final for hospitals that fail to submit quality
discharges occurring on or after April 1, Puerto Rico-specific amounts are shown data consistent with section
2010. in Table 1C. The amounts shown in 1886(b)(3)(B)(viii) of the Act (resulting
Tables 1A and 1B differ only in that the in a ¥0.15 percent update). Below is a
h. FY 2010 Standardized Amount
labor-related share applied to the final revised table reflecting the changes
We recalculated the FY 2010 final standardized amounts in Table 1A is required by the provisions of the
standardized amounts using the 68.8 percent, and the labor-related share Affordable Care Act that details the
methodology finalized in the FY 2010 applied to the final standardized calculation of the final FY 2010
IPPS/RY 2010 LTCH PPS final rule (74 amounts in Table 1B is 62 percent. standardized amounts. Consistent with
FR 44002 through 44014) and taking In addition, Tables 1A and 1B include section 3401(p) of Public Law 111–148,
into account the changes required by the the final standardized amounts hospitals are paid based on these rates
provisions of the Affordable Care Act as reflecting the FY 2010 adjusted market for discharges occurring on or after
discussed above. Tables 1A and 1B of basket update of 1.85 percent update April 1, 2010.
COMPARISON OF FY 2009 STANDARDIZED AMOUNTS TO THE FY 2010 STANDARDIZED AMOUNT WITH FULL AND REDUCED
UPDATE
Full update Full update Reduced update Reduced update
(1.85 percent); wage (1.85 percent); wage (¥0.15 percent); wage (¥0.15 percent); wage
index is greater than index is less than or index is greater than index is less than or
1.0000 equal to 1.0000 1.0000 equal to 1.0000
FY 2009 Base Rate, after remov- Labor: $3,748.52 ............ Labor: $3,378.03 ............ Labor: $3,748.52 ............ Labor: $3,378.03.
ing geographic reclassification Nonlabor: $1,699.91 ....... Nonlabor: $2,070.40 ....... Nonlabor: $1,699.91 ....... Nonlabor: $2,070.40.
budget neutrality, demonstra-
tion budget neutrality and
outlier offset (based on the
labor-related share percentage
for FY 2010).
FY 2010 Update Factor ............... 1.0185 ............................. 1.0185 ............................. 0.9985 ............................. 0.9985.
FY 2010 DRG Recalibration and 0.998352 ......................... 0.998352 ......................... 0.998352 ......................... 0.998352.
Wage Index Budget Neutrality
Factor.
FY 2010 Reclassification Budget 0.991985 ......................... 0.991985 ......................... 0.991985 ......................... 0.991985.
Neutrality Factor.
FY 2010 Outlier Factor ................ 0.948998 ......................... 0.948998 ......................... 0.948998 ......................... 0.948998.
Rural Demonstration Budget 0.999739 ......................... 0.999739 ......................... 0.999739 ......................... 0.999739.
Neutrality Factor.
Rate for FY 2010 ......................... Labor: $3,587.24 ............ Labor: $3,232.69 ............ Labor: $3,516.80 ............ Labor: $3,169.22.
Nonlabor: $1,626.78 ....... Nonlabor: $1,981.33 ....... Nonlabor: $1,594.84 ....... Nonlabor: $1,942.42.
The labor-related and nonlabor- descending&itemID=CMS1234175&int adjustment factor (GAF) since the GAF
related portions of the national average NumPerPage=10.) values are derived from the wage index
standardized amounts for Puerto Rico values (see § 412.316(a)). In addition,
2. FY 2010 Prospective Payment Rates
hospitals for FY 2010 are set forth in the provisions of the Affordable Care
for Acute Care Hospital Inpatient
Table 1C in this notice. (The labor- Act also necessitate a revision to the
Capital-Related Costs
related share applied to the Puerto Rico- outlier payment adjustment factor for
specific standardized amount is either Although the provisions of the FY 2010 since a single set of thresholds
62.1 percent or 62 percent, depending Affordable Care Act do not directly is used to identify outlier cases for both
on which is more advantageous to the affect the payment rates and policies for inpatient operating and inpatient
hospital.) the IPPS for capital-related costs, as capital-related payments (see
discussed in section II.C. of this notice, § 412.312(c)).
i. Final FY 2010 Adjustments for Area we are revising the capital IPPS In this notice, we have calculated the
Wage Levels standard Federal rates for FY 2010. The final FY 2010 capital Federal rates,
revised FY 2010 capital Federal rates are offsets, and budget neutrality factors
The following wage index tables were effective for discharges occurring on or using the same methodology we
revised in this notice as a result of the after April 1, 2010, consistent with adopted in the FY 2010 IPPS/RY 2010
provisions of the Affordable Care Act: section 3401(p) of Public Law 111–148. LTCH PPS final rule (74 FR 44014
Tables 2, 4A, 4B, 4C, 4D–1, 4D–2, 4J, The revision to the FY 2010 capital through 44021), as revised by the FY
and 9B. (These tables can be found in Federal rates is necessary because the 2010 IPPS/RY 2010 LTCH PPS
the Addendum to this notice and are operating IPPS market basket and wage correction notice (October 7, 2009; (74
also available on the CMS Web site at index changes required by the FR 51496 through 51499)), that was
http://www.cms.gov/ provisions of the Affordable Care Act used to calculate the final rates and
AcuteInpatientPPS/WIFN/ (discussed in section II.A. of this notice) factors included in that rule which did
itemdetail.asp?filter affect the budget neutrality adjustment not reflect the provisions of the
Type=none&filterByDID= factor for changes in DRG classifications Affordable Care Act. For a complete
0&sortByDID=3&sortOrder= and weights and the geographic description of this methodology, please
see the FY 2010 IPPS/RY 2010 LTCH than the percentage for FY 2009. This 2010 LTCH PPS final rule (74 FR 44018
PPS final rule (74 FR 44014 through decrease in capital outlier payments is through 44019), for FY 2010, we are
44021), as revised by the FY 2010 IPPS/ primarily due to the estimated increase establishing a GAF/DRG budget
RY 2010 LTCH PPS correction notice in capital IPPS payments per discharge. neutrality factor of 0.9994, which is the
(74 FR 51496 through 51499). That is, because capital payments per product of the incremental GAF budget
discharge are projected to increase in FY neutrality factor of 0.9999 and the DRG
a. Capital Standard Federal Rate Update
2010 compared to FY 2009, as shown in budget neutrality factor of 0.9995 (the
for FY 2010
Table III. in section IV.C. of this notice, DRG budget neutrality factor remains
The final factors used in the FY 2010 fewer cases will qualify for outlier
update framework are not affected by unchanged from the FY 2010 IPPS/RY
payments.
the provisions of the Affordable Care 2010 LTCH PPS final rule). The GAF/
The outlier reduction factors are not
Act. Therefore, the final update factor built permanently into the capital rates; DRG budget neutrality factors are built
for FY 2010 is not being revised from that is, they are not applied permanently into the capital rates; that
the final capital IPPS standard Federal cumulatively in determining the capital is, they are applied cumulatively in
rate update factor discussed in section Federal rate. The FY 2010 outlier determining the capital Federal rate.
III.A.1. of the FY 2010 IPPS/RY 2010 adjustment of 0.9478 is a 0.14 percent This follows the requirement that
LTCH PPS final rule, as revised by the change from the FY 2009 outlier estimated aggregate payments each year
FY 2010 IPPS/RY 2010 LTCH PPS adjustment of 0.9465. Therefore, the net be no more or less than they would have
correction notice and remains at 1.2 change in the outlier adjustment to the been in the absence of the annual DRG
percent for FY 2010. A full discussion capital Federal rate for FY 2010 is reclassification and recalibration and
of the update framework is provided in 1.0014 (0.9478/0.9465). Thus, the changes in the GAFs. The incremental
the FY 2010 IPPS/RY 2010 LTCH PPS outlier adjustment increases the FY change in the adjustment from FY 2009
final rule (74 FR 44015 through 44017) 2010 capital Federal rate by 0.14 percent to FY 2010 is 0.9994. The cumulative
in conjunction with the FY 2010 IPPS/ compared to the FY 2009 outlier change in the FY 2010 capital Federal
RY 2010 LTCH PPS correction notice adjustment. rate due to this adjustment is 0.9911
(74 FR 51498 through 51499). A single set of thresholds is used to (the product of the incremental factors
identify outlier cases for both inpatient for FYs 1995 though 2009 and the
b. Outlier Payment Adjustment Factor
operating and inpatient capital-related
Based on the thresholds as set forth in incremental factor of 0.9994 for FY
payments (see § 412.312(c)). The outlier
section II.E.2. of this notice, we estimate 2010). (We note that averages of the
thresholds are set so that operating
that outlier payments for capital-related outlier payments are projected to be 5.1 incremental factors that were in effect
costs will equal 5.22 percent for percent of total operating IPPS DRG during FYs 2005 and 2006, respectively,
inpatient capital-related payments based payments. The outlier thresholds for FY and the revised FY 2010 factor of 0.9994
on the final capital Federal rate in FY 2010 are in section II.E.1. of this notice. that reflect the effect of the provisions
2010. Therefore, we are applying an For FY 2010, for discharges occurring of the Affordable Care Act (as discussed
outlier adjustment factor of 0.9478 in on or after April 1, 2010, a case qualifies in section II.C. of this notice) were used
determining the FY 2010 capital Federal as a cost outlier if the cost for the case in the calculation of the cumulative
rate. For FY 2009, we estimated that plus the IME and DSH payments is adjustment of 0.9911 for FY 2010.) The
outlier payments for capital will equal greater than the prospective payment cumulative adjustments for MS–DRG
5.35 percent of inpatient capital-related rate for the MS–DRG plus the fixed-loss classifications and changes in relative
payments, and we established an outlier amount of $23,135. weights and for changes in the national
adjustment factor of 0.9465 for FY 2009 GAFs through FY 2010 is 0.9911. The
based on the capital Federal rate in FY c. Budget Neutrality Adjustment Factor
for Changes in DRG Classifications and following table summarizes the
2009 (73 FR 57891). Thus, we estimate adjustment factors for each fiscal year:
that the percentage of capital outlier Weights and the GAF
payments to total capital standard Using the methodology discussed in
payments for FY 2010 will be lower section III.A.3. of the FY 2010 IPPS/RY

Affordable Care Act (as discussed in changes in payments due to changes in
The factor accounts for the MS–DRG section II.A. of this notice). It also the DSH and IME adjustment factors.
reclassifications and recalibration and incorporates the effects on the GAFs of
d. Exceptions Payment Adjustment
for changes in the GAFs, which include FY 2010 geographic reclassification
Factor
the changes to the operating IPPS decisions made by the MGCRB
market basket update and wage index as compared to FY 2009 decisions. The provisions of the Affordable Care
required by the provisions of the However, it does not account for Act have no effect on capital exceptions
EN02JN10.154</GPH>
payments. Therefore, the special capital Federal rate in comparison to the section VI.E.1. of the preamble of the FY
exceptions adjustment factor remains at FY 2009 national capital Federal rate. 2010 IPPS/RY 2010 LTCH PPS final rule
0.9998 as discussed in section III.A.4. of The FY 2010 update factor has the effect (74 FR 43926 through 43928), we did
the FY 2010 IPPS/RY 2010 LTCH PPS of increasing the capital Federal rate by not apply an additional adjustment to
final rule (74 FR 44019). 1.2 percent compared to the FY 2009 the FY 2010 capital Federal rate for
e. Capital Standard Federal Rate for FY capital Federal rate. The GAF/DRG changes in documentation and coding
2010 budget neutrality factor of 0.9994 has that do not reflect real changes in
the effect of decreasing the capital patients’ severity of illness. A
As a result of the 1.2 percent update
and other budget neutrality factors Federal rate by 0.06 percent compared permanent cumulative adjustment of
discussed above, we are establishing a to the FY 2009 capital Federal rate. The ¥1.5 percent (that is, a factor of 0.985)
national capital Federal rate of $429.56 FY 2010 outlier adjustment factor has was applied in determining the FY 2009
for FY 2010. As stated above, this rate the effect of increasing the capital capital Federal rate for changes in
will apply to discharges occurring on or Federal rate by 0.14 percent compared documentation and coding that do not
after April 1, 2010, consistent with to the FY 2009 capital Federal rate. The reflect real changes in patients’ severity
section 3401(p) of Public Law 111–148. FY 2010 exceptions payment of illness. The combined effect of all the
We are providing the following chart adjustment factor has the effect of changes increase the national capital
that shows how each of the factors and decreasing the capital Federal rate by Federal rate by approximately 1.27
adjustments for FY 2010 affects the 0.01 percent compared to the FY 2009 percent compared to the FY 2009
computation of the FY 2010 national capital Federal rate. As discussed in national capital Federal rate.
COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2009 CAPITAL FEDERAL RATE AND FY 2010 CAPITAL FEDERAL RATE
Percent
FY 2009 FY 2010 Change change
Update Factor 1 ................................................................................................................ 1.0090 1.0120 1.0120 1.20

GAF/DRG Adjustment Factor 1 ........................................................................................ 1.0004 0.9994 0.9994 ¥0.06
Outlier Adjustment Factor 2 .............................................................................................. 0.9465 0.9478 1.0014 0.14
Exceptions Adjustment Factor 2 ....................................................................................... 0.9999 0.9998 0.9999 ¥0.01
MS–DRG Documentation and Coding Adjustment Factor .............................................. 3 0.9850 3 0.9850 1.0000 0.00
Capital Federal Rate ........................................................................................................ $424.17 $429.56 1.0127 1.27
1 The update factor and the GAF/DRG budget neutrality factors are built permanently into the capital rates. Thus, for example, the incremental
change from FY 2009 to FY 2010 resulting from the application of the 0.9994 GAF/DRG budget neutrality factor for FY 2010 is a net change of
0.9994.
2 The outlier reduction factor and the exceptions adjustment factor are not built permanently into the capital rates; that is, these factors are not
applied cumulatively in determining the capital rates. Thus, for example, the net change resulting from the application of the FY 2010 outlier ad-
justment factor is 0.9478//0.9465, or 1.0014.
3 The documentation and coding adjustment factor includes the ¥0.6 percent in FY 2008, ¥0.9 percent in FY 2009, and no additional reduc-
tion in FY 2010.
We are also providing a chart that the provisions of the Affordable Care IPPS final rule (74 FR 44020), as revised
shows how the revised FY 2010 capital Act differs from the FY 2010 capital by the FY 2010 IPPS/RY 2010 LTCH
Federal rate, which reflects the effect of Federal rate as presented in the FY 2010 PPS correction notice (74 FR 52499).
COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2010 CAPITAL FEDERAL RATE PRIOR TO THE ENACTMENT OF THE AF-
FORDABLE CARE ACT AND REVISED FY 2010 CAPITAL FEDERAL RATE REFLECTING THE EFFECT OF THE PROVISIONS
OF THE AFFORDABLE CARE ACT
Revised FY Percent
FY 2010 * Change
2010 ** change
Update Factor .................................................................................................................. 1.0120 1.0120 1.0000 0.00

GAF/DRG Adjustment Factor .......................................................................................... 0.9990 0.9994 1.0004 0.04
Outlier Adjustment Factor ................................................................................................ 0.9475 0.9478 1.0003 0.03
Exceptions Adjustment Factor ......................................................................................... 0.9998 0.9998 1.0000 0.00
MS–DRG Documentation and Coding Adjustment Factor .............................................. 1.0000 1.0000 1.0000 0.00
Capital Federal Rate ........................................................................................................ $429.26 $429.56 1.0007 0.07
* FY 2010 capital IPPS rates and factors established in the FY 2010 IPPS/RY 2010 LTCH PPS final rule (74 FR 44020), as revised by the FY
2010 IPPS/RY 2010 LTCH PPS correction notice (74 FR 52499), developed prior to the enactment of the Affordable Care Act.
** Final FY 2010 capital IPPS rates and factors reflecting the effect of the provisions of the Affordable Care Act.
f. Special Capital Rate for Puerto Rico (4) [of 1886(m) of the Act]. Section discussed in greater detail in the FY
Hospitals 1886(m)(4)(A) of the Act provides for a 2010 IPPS/RY 2010 final rule (74 FR
Using the methodology discussed in 0.25 percentage point reduction to the 44022), while we continued to believe
the FY 2010 IPPS/RY 2010 LTCH PPS annual update for RY 2010. Therefore, that an update to the LTCH PPS
final rule (74 FR 44020), with the we are reducing the applicable market standard Federal rate should be based
basket update for RY 2010 by 0.25 on the most recent estimate of the
changes we are making to the factors
percentage points, as described in increase in the LTCH PPS market
used to determine the capital rate, the
greater detail below. With respect to basket, we also believed it is appropriate
FY 2010 special capital rate for
section 3401(p) of Public Law 111–148, that the standard Federal rate be offset
hospitals in Puerto Rico is $203.57. (See
this section provides that, by an adjustment to account for any
the FY 2010 IPPS/RY 2010 LTCH PPS
notwithstanding the previous provisions changes in documentation and coding
final rule (74 FR 44015 through 44020)
of this section, the amendments made practices that do not reflect increased
and FY 2010 IPPS/RY 2010 LTCH PPS
by subsections (a), (c) and (d) shall not patient severity of illness. Therefore, in
correction notice (74 FR 51499) for
apply to discharges occurring before determining the update to the standard
additional information on the
April 1, 2010. When read in Federal rate for RY 2010 in that same
calculation of the FY 2010 capital conjunction, we believe section final rule, based on an analysis of FY
Puerto Rico specific rate.) 1886(m)(3)(A)(ii) of the Act and section 2007 claims data, we established a ¥0.5
F. Changes to the Payment Rates for the 3401(p) of Public Law 111–148 provide adjustment to account for the increase
LTCH PPS for RY 2010 for a single revised RY 2010 standard in case-mix due to changes in
Federal rate; however, for payment documentation and coding practices
1. LTCH PPS Standard Federal Rate for purposes, discharges occurring on or that do not reflect increased patient
RY 2010 after October 1, 2009 and before April severity of illness from a prior period
a. Revision of Certain Market Basket 1, 2010, simply will not be based on the (FY 2007).
Updates as Required by the Affordable revised RY 2010 standard Federal rate. Consistent with our historical practice
Care Act (In other words, for discharges occurring and the methodology used in the FY
on or after October 1, 2009 and on or 2010 IPPS/RY 2010 final rule, in this
In section V. of the Addendum of the
before March 31, 2010, the update to the notice, we are establishing an update to
FY 2010 IPPS/RY 2010 final rule (74 FR
LTCH PPS Federal rate will be based on the LTCH PPS standard Federal rate for
44021 through 44022), we discuss the RY 2010 based on the full forecasted
the applicable update factor set forth in
changes to the payment rates and factors estimated increase in the LTCH PPS
the FY 2010 IPPS/RY 2010 LTCH PPS
under the LTCH PPS for RY 2010. market basket of 2.5 percent, adjusted
final rule (74 FR 44022).) For discharges
Below we establish revised RY 2010 by the 0.25 percentage point reduction
occurring on or after April 1, 2010
LTCH PPS rates and factors consistent required by sections 1886(m)(3)(A)(ii)
through September 30, 2010, payment is
with the provisions of section and (4)(A) of the Act and an adjustment
based on the revised RY 2010 standard
1886(m)(3) of the Act as added by to account for the increase in case-mix
Federal rate established below in this
section 3401(c) of Public Law 111–148, notice. in a prior period (FY 2007) resulting
and section 1886(m)(4) as added by from changes in documentation and
section 3401(c) of Public Law 111–148 b. Development of the RY 2010 LTCH coding practices of ¥0.5 percent.
and amended by section 10319(b) of PPS Standard Federal Rate Consequently, the update factor to the
Public Law 111–148, as further As discussed in section V.A. of the standard Federal rate for RY 2010 is
amended by section 1105(b) of Public Addendum of the FY 2010 IPPS/RY 1.74 percent (that is, we are applying a
Law 111–152, as well as section 3401(p) 2010 LTCH PPS final rule (74 FR factor of 1.0174 in determining the
of Public Law 111–148. Section 44022), while we continue to believe LTCH PPS standard Federal rate for RY
1886(m)(3)(A) of the Act provides that that an update to the LTCH PPS 2010, calculated as 1.0225 × 1 divided
in implementing the system described standard Federal rate should be based by 1.005 = 1.0174 or 1.74 percent).)
in paragraph (1) [of 1886(m) of the Act] on the most recent estimate of the Furthermore, consistent with our
for rate year 2010 and each subsequent increase in the LTCH PPS market historical practice of updating the
rate year, any annual update to the basket, we also believe it is appropriate standard Federal rate for the previous
standard Federal rate for discharges for that the standard Federal rate be offset rate year, in determining the standard
the hospital during the rate year, shall by an adjustment to account for any Federal rate for RY 2010 in this notice,
be reduced (i) for rate year 2012 and changes in documentation and coding we are applying the update factor of
each subsequent rate year, by the practices that do not reflect increased 1.0174 to the RY 2009 standard Federal
productivity adjustment described in patient severity of illness. Such an rate of $39,114.36 (established in the RY
section 1886(b)(3)(B)(xi)(II) [of the Act]; adjustment protects the integrity of the 2009 LTCH PPS final rule (73 FR
and (ii) for each of the rate years 2010 Medicare Trust Funds by ensuring that 26788)). Furthermore, consistent with
through 2019, by the other adjustment the LTCH PPS payment rates better section 3401(p) of Public Law 111–148,
described in paragraph (4) [of 1886(m) reflect the true costs of treating LTCH this update factor to the standard
of the Act]. As explained above in patients. Federal rate for RY 2010 will not be
section II.D. of this notice, section As discussed in section II.D. of this applied in determining LTCH PPS
1886(m)(3)(A) of the Act on its face notice, consistent with sections payments for discharges occurring prior
explicitly provides for a revised annual 1886(m)(3)(A)(ii) and (4)(A) of the Act, to April 1, 2010. In other words, for
update to the standard Federal rate the market basket update under the discharges occurring on or after October
beginning RY 2010, thus resulting in a LTCH PPS for RY 2010 is 2.25 percent 1, 2009 through March 31, 2010, LTCH
single revised RY 2010 standard Federal (that is, the second quarter 2009 forecast PPS payments will be based on the
rate. Under section 1886(m)(3)(A)(ii), estimate of the RY 2010 LTCH PPS standard Federal rate established in the
the annual update to the standard market basket increase of 2.5 percent FY 2010 IPPS/RY 2010 LTCH PPS final
Federal rate shall be reduced for each of minus the 0.25 percentage points rule (that is, 2.0 percent).
the rate years 2010 through 2019, by the required by sections 1886(m)(3)(A)(ii) Therefore, in this notice, under the
other adjustment described in paragraph and (4)(A) of the Act. Furthermore, as authority of sections 1886(m)(3)(A)(ii)
and (4)(A) of the Act, we are specifying payment for the MS–LTC–DRG plus a 148 provide for a single revised RY 2010
that the standard Federal rate for the fixed-loss amount. Specifically, in standard Federal rate; however, for
LTCH PPS rate year beginning October accordance with § 412.525(a)(3) (in payment purposes, discharges occurring
1, 2009 and ending September 30, 2010, conjunction with § 412.503), we pay on or after October 1, 2009 and before
is the standard Federal rate for the outlier cases 80 percent of the difference April 1, 2010, simply will not be based
previous rate year updated by 1.74 between the estimated cost of the on the revised RY 2010 standard Federal
percent. In a supplemental proposed patient case and the outlier threshold, rate.
rule published elsewhere in this Federal which is the sum of the adjusted Federal
prospective payment for the MS–LTC– This legislative change to the standard
Register, we are proposing to revise the
DRG and the fixed-loss amount. The Federal rate for RY 2010 requires us to
regulations text at § 412.523(c)(3)(vi)
consistent with the 1.74 percent update fixed-loss amount is the amount used to revise the HCO fixed-loss amount for RY
for RY 2010 that we are establishing in limit the loss that a hospital will incur 2010 discharges occurring on or after
this notice. In determining the standard under the outlier policy for a case with April 1, 2010. This is necessary in order
Federal rate for RY 2010, we are unusually high costs. This results in to maintain the requirement that the
applying the 1.0174 update factor to the Medicare and the LTCH sharing fixed-loss amount results in estimated
RY 2009 Federal rate of $39,114.36 (73 financial risk in the treatment of total outlier payments being projected to
FR 26812). Consequently, the standard extraordinarily costly cases. Under the be equal to 8 percent of projected total
Federal rate for RY 2010, developed LTCH PPS HCO policy, the LTCH’s loss LTCH PPS payments since projected
consistent with sections is limited to the fixed-loss amount and total payments LTCH PPS for RY 2010
1886(m)(3)(A)(ii) and (4)(A) of the Act is a fixed percentage of costs above the have changed relative to the projected
$39,794.95. Furthermore, consistent outlier threshold (MS–LTC–DRG total LTCH PPS payments for RY 2010
with section 3401(p) of Public Law 111– payment plus the fixed-loss amount). when we established the original RY
148, we are proposing to revise The fixed percentage of costs is called 2010 fixed-loss amount in the FY 2010
§ 412.523(c)(3)(vi)(B) in a supplemental the marginal cost factor. We calculate IPPS/RY 2010 LTCH PPS final rule (74
proposed rule published elsewhere in the estimated cost of a case by FR 44029) due to the legislative change
this Federal Register. Section multiplying the Medicare allowable to the standard Federal rate for RY 2010.
412.523(c)(3(vi)(B) would specify that covered charge by the hospital’s overall Specifically, the original RY 2010 HCO
with respect to discharges occurring on hospital cost-to-charge ratio (CCR). fixed-loss amount of $18,425 was
or after October 1, 2009 and before April Under the LTCH PPS, we determine a determined based on the RY 2010
1, 2010, payments are based on the fixed-loss amount, that is, the maximum
update of 2.0 percent and the standard
standard Federal rate in § 412.523(c)(v) loss that a LTCH can incur under the
Federal rate of $39,896.65 (as
updated by 2.0 percent (that is, a LTCH PPS for a case with unusually
high costs before the LTCH will receive established in the FY 2010 IPPS/RY
standard Federal rate of $39,896.65 (see 2010 LTCH PPS final rule (74 FR
74 FR 44022). any additional payments. We calculate
the fixed-loss amount by estimating 44022)). However, for RY 2010 LTCH
2. Adjustment for LTCH PPS High-Cost aggregate payments with and without an discharges occurring on or after April 1,
Outlier (HCO) Cases outlier policy. The fixed-loss amount 2010, LTCH PPS payments are based on
results in estimated total outlier the revised update of 1.74 percent and
a. Background
payments being projected to be equal to the revised standard Federal rate of
When we implemented the LTCH PPS 8 percent of projected total LTCH PPS $39,794.95 (as established in this
in the FY 2003 LTCH PPS final rule, in payments. Currently, MedPAR claims notice). In order to maintain that
the regulations at § 412.525(a), we data and CCRs based on data from the estimated total outlier payments are
established an adjustment for additional most recent provider specific file (PSF) projected to be equal to 8 percent of
payments for outlier cases that have (or from the applicable statewide projected total LTCH PPS payments in
extraordinarily high costs relative to the average CCR if a LTCH’s CCR data are RY 2010, as adopted in the FY 2010
costs of most discharges (see (67 FR faulty or unavailable) are used to IPPS/RY 2010 LTCH PPS final rule (74
56022 through 56027)). We refer to these establish a fixed-loss threshold amount FR 44028 though 44030), we are
cases as high cost outliers (HCOs). under the LTCH PPS. revising the HCO fixed-loss amount for
Providing additional payments for As discussed in section II.F.1.c. of this RY 2010 discharges occurring on or after
outliers strongly improves the accuracy notice, various sections of Public Law April 1, 2010 (as discussed below in the
of the LTCH PPS in determining 111–148 and Public Law 111–152 next section). (For an explanation of our
resource costs at the patient and amended section 1886(m) of the Act by rationale for establishing an HCO
hospital level. These additional adding new paragraphs (3) and (4). payment ‘‘target’’ of 8 percent of total
payments reduce the financial losses Consistent with the provisions of
that would otherwise be incurred when estimated LTCH payments, we refer
sections 1886(m)(3)(A)(ii) and (4)(A) of
treating patients who require more readers to the August 30, 2002 LTCH
the Act, we are establishing a revised
costly care and, therefore, reduce the standard Federal rate for RY 2010 by PPS final rule (67 FR 56022 through
incentives to underserve these patients. applying the required 0.25 percentage 56024).) Consistent with section 3401(p)
We set the outlier threshold before the point reduction to the annual update for of Public Law 111–148, the revised HCO
beginning of the applicable rate year so RY 2010. Notwithstanding these fixed-loss amount established in this
that total estimated outlier payments are provisions, section 3401(p) of Public notice will not apply to discharges
projected to equal 8 percent of total Law 111–148 provides that the occurring prior to April 1, 2010. In other
estimated payments under the LTCH amendments made by subsections (a), words, for discharges occurring on or
PPS. (c) and (d) of section 3401 of of Public after October 1, 2009 through March 31,
Under § 412.525(a) in the regulations Law 111–148 shall not apply to 2010, LTCH PPS payments will be based
(in conjunction with § 412.503), we discharges occurring before April 1, on the HCO fixed-loss amount
make outlier payments for any 2010. When read in conjunction we established in the FY 2010 IPPS/RY
discharges if the estimated cost of a case believe section 1886(m)(3)(A) of the Act 2010 LTCH PPS final rule (that is,
exceeds the adjusted LTCH PPS and section 3401(p) of Public Law 111– $18,425 (see 74 FR 44029)).
b. The LTCH PPS Fixed-Loss Amount 2010 fixed-loss amount of $18,425 account for differences in area wages by
for RY 2010 Discharges Occurring On or (established in the FY 2010 IPPS/RY multiplying the labor-related share of
After April 1, 2010 2010 LTCH PPS final rule (74 FR the standard Federal rate by the
For this notice, to calculate a fixed- 44029)). Because of the 0.25 percentage appropriate LTCH PPS wage index (as
loss amount that will maintain point reduction to the annual update to shown in Tables 12A and 12B of the
estimated HCO payments at the the standard Federal rate for RY 2010 Addendum of the FY 2010 IPPS/RY
projected 8 percent of total estimated required by sections 1886(m)(3)(A)(i) 2010 LTCH PPS final rule (74 FR 44192
LTCH PPS payments for RY 2010 and (4)(A) of the Act, the slight increase through 44213)). The standard Federal
discharges occurring on or after April 1, in the fixed-loss amount for RY 2010 is rate is also adjusted to account for the
2010, we used the same methodology necessary to maintain the existing
higher costs of hospitals in Alaska and
and data that we used to establish the requirement that estimated outlier
Hawaii by multiplying the nonlabor-
original RY 2010 HCO fixed-loss payments would equal 8 percent of
estimated total LTCH PPS payments. related share of the standard Federal
amount in the FY 2010 IPPS/RY 2010 rate by the appropriate cost-of-living
LTCH PPS final rule (74 FR 44028). (For further information on the existing
8 percent HCO ‘‘target’’ requirement, we factor (shown in the chart in section
Specifically, we used LTCH claims data V.C.5. of the Addendum of the FY 2010
from the March 2009 update of the FY refer readers to the August 30, 2002
LTCH PPS final rule (67 FR 56022 IPPS/RY 2010 LTCH PPS final rule (74
2008 MedPAR files and CCRs from the FR 44026). In this notice, we are
March 2009 update of the PSF to through 56024.) Maintaining the fixed-
loss amount at the level established in establishing a standard Federal rate for
determine a fixed-loss amount that
the FY 2010 IPPS/RY 2010 LTCH PPS RY 2010 of $39,794.95, as discussed
would result in estimated outlier
final rule would result in HCO above in section II.F.1.c. of this notice.
payments projected to be equal to 8
payments that are greater than the (As discussed above in that section,
percent of total estimated payments in
current 8 percent regulatory discharges occurring on or after April 1,
RY 2010. In addition, we continued to
requirement because a lower fixed-loss 2010 will be paid under the revised RY
use the MS–LTC–DRG classifications
amount would result in more cases 2010 standard Federal rate established
and relative weights from the version of
qualifying as outlier cases as well as in this notice, consistent with section
the GROUPER that is in effect as of the
increases the amount of the additional 3401(p) of Pub. L. 111–148.) We
beginning of RY 2010, that is, Version
payment for a HCO case because the illustrate the methodology to adjust the
27.0 of the GROUPER and the FY 2010
maximum loss that a LTCH must incur LTCH PPS Federal rate for RY 2010 in
MS–LTC–DRG relative weights before receiving an HCO payment (that
(discussed in section VIII.B. of the the following example:
is, the fixed-loss amount) would be
preamble of the FY 2010 IPPS/RY 2010 smaller. For these reasons, we believe Example:
LTCH PPS final rule (74 FR 43951 that raising the fixed-loss amount is During RY 2010, a Medicare patient is
through 43967) to determine the revised appropriate and necessary to maintain in a LTCH located in Chicago, Illinois
fixed-loss amount for RY 2010 that estimated outlier payments would
discharges occurring on or after April 1, (CBSA 16974). The RY 2010 LTCH PPS
equal 8 percent of estimated total LTCH wage index value for CBSA 16974 is
2010. PPS payments as required under
In order to maintain estimated HCO 1.0573 (Table 12A of the Addendum of
§ 412.525(a). the FY 2010 IPPS/RY 2010 LTCH PPS
payments at the projected 8 percent of As we noted in the FY 2010 IPPS/RY
total estimated LTCH PPS payments for final rule(74 FR 44196)). The Medicare
2010 LTCH PPS final rule (74 FR
RY 2010, in this notice, under the broad patient is classified into MS–LTC–DRG
44030), under some rare circumstances,
authority of section 123(a)(1) of the a LTCH discharge could qualify as a 28 (Spinal Procedures with MCC),
BBRA and section 307(b)(1) of BIPA, we SSO case (as defined in the regulations which has a relative weight for FY 2010
are revising the HCO fixed-loss amount at § 412.529 in conjunction with of 1.0834 (Table 11 of the Addendum of
for RY 2010 from $18,425 (as § 412.503) and also as a HCO case. In the FY 2010 IPPS/RY 2010 LTCH PPS
established in the FY 2010 IPPS/RY this scenario, a patient could be final rule (74 FR 44183)).
2010 LTCH PPS final rule (74 FR hospitalized for less than five-sixths of To calculate the LTCH’s total adjusted
44028)) to $18,615 for RY 2010 the geometric average length of stay for Federal prospective payment for this
discharges occurring on or after April 1, the specific MS–LTC–DRG, and yet Medicare patient, we compute the wage-
2010 (consistent with section 3401(p) of incur extraordinarily high treatment adjusted Federal prospective payment
Pub. L. 111–148). Thus, for RY 2010 costs. If the costs exceeded the HCO amount by multiplying the unadjusted
discharges occurring on or after April 1, threshold (that is, the SSO payment plus
2010, we will pay an outlier case 80 standard Federal rate ($39,794.95) by
the fixed-loss amount), the discharge is the labor-related share (75.779 percent)
percent of the difference between the eligible for payment as a HCO. Thus,
estimated cost of the case and the and the wage index value (1.0471). This
effective for discharges occurring on or
outlier threshold (the sum of the wage-adjusted amount is then added to
after April 1, 2010 in RY 2010 for a SSO
adjusted Federal LTCH payment for the case, the HCO payment would be 80 the nonlabor-related portion of the
MS–LTC–DRG and the fixed-loss percent of the difference between the unadjusted standard Federal rate
amount of $18,615). The revised HCO estimated cost of the case and the (24.221 percent; adjusted for cost of
fixed-loss amount of $18,615 results in outlier threshold (the sum of the fixed- living, if applicable) to determine the
estimated total HCO payments being loss amount of $18,615 and the amount adjusted Federal rate, which is then
projected to be equal to 8 percent of paid under the SSO policy as specified multiplied by the MS–LTC–DRG
projected total LTCH PPS payments for in § 412.529). relative weight (1.0933) to calculate the
RY 2010 discharges occurring on or after total adjusted Federal LTCH PPS
April 1, 2010. 3. Computing the Adjusted LTCH PPS
prospective payment for RY 2010
The revised fixed-loss amount of Federal Prospective Payments for RY
($45,060.59). The table below illustrates
$18,615 for RY 2010 discharges 2010
the components of the calculations in
occurring on or after April 1, 2010 is In accordance with § 412.525, the this example.
slightly higher than the original RY standard Federal rate is adjusted to
Unadjusted Standard Federal Prospective Payment Rate .......................................................................................................... $39,794.95

Labor-Related Share ..................................................................................................................................................................... × 0.75779
Labor-Related Portion of the Federal Rate .................................................................................................................................. = $30,156.22
Wage Index (CBSA 16974) ........................................................................................................................................................... × 1.0471
Wage-Adjusted Labor Share of Federal Rate .............................................................................................................................. = $31,576.57
Nonlabor-Related Portion of the Federal Rate ($39,794.95 × 0.24221) ..................................................................................... + $9,638.73
Adjusted Federal Rate Amount ................................................................................................................................................... = $41,215.30
MS–LTC–DRG 28 Relative Weight .............................................................................................................................................. × 1.0933
Total Adjusted Federal Prospective Payment ............................................................................................................................. = $45,060.59
III. Other Required Information to standard Federal rates that are Public Law 111–148 and Public Law
effective for payment years beginning 111–152, and sections 3137(a) and
A. Collection of Information
October 1, 2009 and their implication 3401(p) of Public Law 111–148, which
Requirements
on payments made for discharges on or require that hospitals be paid on the
This document does not impose after April 1, 2010. We also are notifying basis of revised rates for discharges on
information collection and the public of the extension of section or after April 1, 2010. Therefore, we find
recordkeeping requirements. 508 reclassifications and special good cause to waive notice and
Consequently, it need not be reviewed exception wage indexes for FY 2010, as comment procedures as well as any
by the Office of Management and well as the wage indexes resulting from delay in effective date, if such
Budget under the authority of the Congress’ requirement that certain procedures or delays are required at all.
Paperwork Reduction Act of 1995 (44 reclassification wage indexes be
U.S.C. Chapter 35). IV. Regulatory Impact Analysis
recalculated (effective April 1, 2010) to
B. Waiver of Proposed Rulemaking and account for such extensions. As this A. Overall Impact
Delay of Effective Date notice merely informs the public of Although this notice merely reflects
these required modifications to the the implementation of provisions of the
We ordinarily publish a notice of
payment rates under the IPPS and LTCH Affordable Care Act and does not
proposed rulemaking in the Federal
PPS, it is not a rule and does not require constitute a substantive rule, we are
Register and invite public comment
any notice and comment rulemaking. To nevertheless preparing this impact
prior to a rule taking effect in
the extent any of the policies articulated analysis in the interest of ensuring that
accordance with section 553(b) of the
in this notice constitute interpretations the impacts of these changes are fully
Administrative Procedure Act (APA)
of Congress’s requirements or understood. The changes in this notice
and section 1871 of the Act. In addition,
in accordance with section 553(d) of the procedures that will be used to are already in effect with changes made
APA and section 1871(e)(1)(B)(i) of the implement Congress’s directive, they are to PRICER and announced through a
Act, we ordinarily provide a 30-day interpretive rules, general statements of Joint-Signature Memorandum. We have
delay to a substantive rule’s effective policy, and/or rules of agency procedure examined the impacts of this notice as
date. For substantive rules that or practice, which are not subject to required by Executive Order 12866 on
constitute major rules, in accordance notice-and-comment rulemaking or a Regulatory Planning and Review
with 5 U.S.C. 801, we ordinarily provide delayed effective date. (September 30, 1993), the Regulatory
a 60-day delay in the effective date. However, to the extent that notice and Flexibility Act (RFA) (September 19,
None of the above processes or comment rulemaking or a delay in 1980, Pub. L. 96–354), section 1102(b) of
effective date requirements apply, effective date or both would otherwise the Social Security Act, section 202 of
however, when the rule in question is apply, we find good cause to waive such the Unfunded Mandates Reform Act of
interpretive, a general statement of requirements. Specifically, we find it 1995 (Pub. L. 104–4), Executive Order
policy, or a rule of agency organization, unnecessary to undertake notice and 13132 on Federalism (August 4, 1999),
procedure or practice. They also do not comment rulemaking in this instance as and the Congressional Review Act (5
apply, when Congress, itself, has created this notice does not propose to make U.S.C. 804(2)).
the rules that are to be applied, leaving any substantive changes to IPPS or Executive Order 12866 directs
no discretion or gaps for an agency to LTCH PPS policies or methodologies agencies to assess all costs and benefits
fill in through rulemaking. already in effect as a matter of law, but of available regulatory alternatives and,
In addition, an agency may waive simply applies rate adjustments if regulation is necessary, to select
notice and comment rulemaking, as well required by Public Law 111–148 and regulatory approaches that maximize
as any delay in effective date, when the Public Law 111–152 to these existing net benefits (including potential
agency for good cause finds that notice policies and methodologies. Therefore, economic, environmental, public health
and public comment on the rule as well we would be unable to change any of and safety effects, distributive impacts,
the effective date delay are the policies governing the IPPS for FY and equity). A regulatory impact
impracticable, unnecessary, or contrary 2010 or the LTCH PPS for RY 2010 in analysis (RIA) must be prepared for
to the public interest. In cases where an response to public comment on this major rules with economically
agency finds good cause, the agency notice. As the changes outlined in this significant effects ($100 million or more
must incorporate a statement of this notice have already taken effect, it in any 1 year). We have determined that
finding and its reasons in the rule would also be impracticable to the rates announced in this notice are
issued. undertake notice and comment ‘‘economically significant’’ as measured
The policies being publicized in this rulemaking. For these reasons, we also by the $100 million threshold.
notice do not constitute agency find that a waiver of any delay in Therefore, although we do not consider
rulemaking. Rather, Congress, in the effective date, if it were otherwise this notice to constitute a substantive
Affordable Care Act, has already applicable, is necessary to comply with rule, we have prepared a Regulatory
required that the agency make these the requirements of sections Impact Analysis, that to the best of our
changes, and we are simply notifying 1886(b)(3)(B)(xii) and 1886(m)(3)(A)(ii) ability, presents the costs and benefits of
the public of certain required revisions and (4), as added and amended by this notice.
The RFA requires agencies to analyze any requirements for State, local, or standardized amount by 0.25 percent for
options for regulatory relief of small tribal governments, nor will it affect discharges occurring on or after April 1,
businesses, if a rule has a significant private sector costs. 2010. In this notice, we describe these
impact on a substantial number of small Executive Order 13132 establishes revisions to the wage index,
entities. For purposes of the RFA, small certain requirements that an agency standardized amounts, outlier
entities include small businesses, must meet when it promulgates a thresholds and budget neutrality factors
nonprofit organizations, and small proposed rule (and subsequent final resulting from implementation of the
government jurisdictions. We estimate rule) that imposes substantial direct Affordable Care Act. Because of these
that most hospitals and most other requirement costs on State and local revisions, we are displaying all of the
providers and supplies are small entities governments, preempts State law, or impact columns that were affected by
as that term is used in the RFA. The otherwise has Federalism implications. the market basket reduction and the
great majority of hospitals and most This notice will not have a substantial section 508/special exception extension.
other health care providers and effect on State and local governments. In addition, we are adding a column to
suppliers are small entities, either by The following analysis, in display the impact of the section 508/
being nonprofit organizations or by conjunction with the remainder of this special exception extension. These
meeting the SBA definition of a small document, demonstrates that this notice columns show the impact of the FY
business (having revenues of less than is consistent with the regulatory 2010 changes in this notice compared to
$34.5 million in any 1 year). (For details philosophy and principles identified in the FY 2010 impacts as published in the
on the latest standard for health care Executive Order 12866, the RFA, and FY 2010 IPPS/RY 2010 LTCH PPS final
providers, we refer readers to page 33 of section 1102(b) of the Act. The notice rule (74 FR 44216).
the Table of Small Business Size will affect payments to a substantial Table I displays the results of our
Standards at the Small Business number of small rural hospitals, as well analysis of the changes for FY 2010
Administration’s Web site at http:// as other classes of hospitals, and the resulting from the Affordable Care Act
www.sba.gov/services/ effects on some hospitals may be provisions. The table categorizes
contractingopportunities/ significant. hospitals by various geographic and
sizestandardstopics/tableofsize/ The FY 2010 IPPS/RY 2010 LTCH special payment consideration groups to
index.html.) For purposes of the RFA, PPS final rule included an impact illustrate the varying impacts on
all hospitals and other providers and analysis for the changes to the IPPS different types of hospitals. The top row
suppliers are considered to be small included in that rule. This notice of the table shows the overall impact on
entities. Individuals and States are not updates those impacts to the IPPS the 3,517 acute care hospitals included
included in the definition of a small operating payment system as to reflect in the analysis.
entity. We believe that this notice will certain changes required by the The next four rows of Table I contain
have a significant impact on small Affordable Care Act. Because provisions hospitals categorized according to their
entities. Because we acknowledge that in the Affordable Care Act were non- geographic location: All urban, which is
many of the affected entities are small budget neutral, the overall estimates for further divided into large urban and
entities, the analysis discussed in this hospitals have changed from our other urban; and rural. There are 2,525
section would fulfill any requirement estimate that was published in the FY hospitals located in urban areas
for a final regulatory flexibility analysis. 2010 IPPS/RY 2010 LTCH PPS final rule included in our analysis. Among these,
In addition, section 1102(b) of the Act (74 FR 44215). We estimate that the there are 1,377 hospitals located in large
requires us to prepare a regulatory changes in the FY 2010 IPPS/RY 2010 urban areas (populations over 1
impact analysis if a rule may have a LTCH PPS final rule, in conjunction million), and 1,148 hospitals in other
significant impact on the operations of with the final IPPS rates and wage index urban areas (populations of 1 million or
a substantial number of small rural included in this notice, will result in an fewer). In addition, there are 992
hospitals. This analysis must conform to approximate $1.8 billion increase in hospitals in rural areas. The next two
the provisions of section 604 of the operating payments relative to FY 2009 groupings are by bed-size categories,
RFA. With the exception of hospitals or an additional 0.1 billion relative to shown separately for urban and rural
located in certain New England hospitals. The final groupings by
what was projected in the FY 2010
counties, for purposes of section 1102(b) geographic location are by census
IPPS/RY 2010 LTCH PPS final rule (74
of the Act, we now define a small rural divisions, also shown separately for
FR 44215). Capital payments are
hospital as a hospital that is located urban and rural hospitals.
estimated to increase by $173 million The second part of Table I shows
outside of an urban area and has fewer relative to FY 2009 due to the changes
than 100 beds. Section 601(g) of the hospital groups based on hospitals’ FY
under the Affordable Care Act or an 2010 payment classifications, including
Social Security Amendments of 1983 additional 19 million relative to what
(Pub. L. 98–21) designated hospitals in any reclassifications under section
was published in the FY 2010 IPPS/RY 1886(d)(10) of the Act. For example, the
certain New England counties as
2010 LTCH PPS correction notice (74 FR rows labeled urban, large urban, other
belonging to the adjacent urban area.
51507). urban, and rural show that the numbers
Thus, for purposes of the IPPS, we
continue to classify these hospitals as B. Revised FY 2010 Impacts on IPPS of hospitals paid based on these
urban hospitals. Operating Costs categorizations after consideration of
Section 202 of the Unfunded geographic reclassifications (including
Mandates Reform Act of 1995 (Pub. L. 1. Analysis of Table I reclassifications under sections
104–4) also requires that agencies assess Table I displays the results of our 1886(d)(8)(B) and (d)(8)(E) of the Act)
anticipated costs and benefits before analysis of the payment changes for FY are 2,593; 1,422; 1,171; and 924,
issuing any rule whose mandates 2010 after implementing provisions of respectively.
require spending in any 1 year of $100 the Affordable Care Act, which The next three groupings examine the
million in 1995 dollars, updated extended section 508 reclassifications impacts of the changes on hospitals
annually for inflation. In 2010, that and special exception wage indices grouped by whether or not they have
threshold is approximately $135 through FY 2010 and which reduced the GME residency programs (teaching
million. This notice will not mandate market basket update to the hospitals that receive an IME
adjustment) or receive DSH payments, the IME adjustment, the DSH days. These data were taken from the FY
or some combination of these two adjustment, both, or neither. 2007 or FY 2006 Medicare cost reports.
adjustments. There are 2,475 The next five rows examine the The next two groupings concern the
nonteaching hospitals in our analysis, impacts of the changes on rural geographic reclassification status of
804 teaching hospitals with fewer than hospitals by special payment groups hospitals. The first grouping displays all
100 residents, and 238 teaching urban hospitals that were reclassified by
(SCHs, RRCs, and MDHs). There were
hospitals with 100 or more residents. the MGCRB for FY 2010. The second
187 RRCs, 337 SCHs, 186 MDHs, and
grouping shows the MGCRB rural
In the DSH categories, hospitals are 106 hospitals that are both SCHs and
reclassifications. The last row of this
grouped according to their DSH RRCs, and 15 hospitals that are both an section identifies the 104 section 508
payment status, and whether they are MDH and an RRC. and special exception hospitals.
considered urban or rural for DSH The next series of groupings are based The final category shows the impact
purposes. The next category groups on the type of ownership and the of the policy changes on the 20 cardiac
together hospitals considered urban or hospital’s Medicare utilization hospitals in our analysis.
rural, in terms of whether they receive expressed as a percent of total patient BILLING CODE 4120–01–P
EN02JN10.155</GPH>
EN02JN10.156</GPH>
EN02JN10.157</GPH>

EN02JN10.158</GPH>
1. Effects of the Changes to the MS–DRG neutrality factor did not change the reclassifications (and excludes the
Reclassifications and Relative Cost- impact to most hospital categories as effects of extending the section 508
Based Weights With the Application of compared to the FY 2010 IPPS/RY 2010 reclassifications and special exception
Recalibration Budget Neutrality LTCH PPS final rule. wage indices). The overall effect of
(Column 1) 3. Combined Effects of MS–DRG and geographic reclassification is required
Column 1 shows the effects of the Wage Index Changes (Column 3) by section 1886(d) (8) (D) of the Act to
changes to the MS–DRGs and relative be budget neutral. For the purposes of
Section 1886(d)(4)(C)(iii) of the Act this impact analysis, we apply an
weights with the application of the requires that changes to MS–DRG
recalibration budget neutrality factor to adjustment of 0.991985, which ensures
reclassifications and the relative weights that the effects of the section 1886(d)
the standardized amounts as compared cannot increase or decrease aggregate
to the FY 2010 IPPS/RY 2010 LTCH PPS (10) reclassifications are budget neutral.
payments. In addition, section The number of providers receiving a
final rule. The recalibration budget 1886(d)(3)(E) of the Act specifies that
neutrality factor was revised due to the geographic reclassification has been
any updates or adjustments to the wage reduced from 807 providers in the FY
0.25 percentage point reduction to the index are to be budget neutral. The FY
applicable percentage increase applied 2010 IPPS/RY 2010 LTCH PPS final rule
2010 MS–DRG reclassification, relative
to the Federal standardized amount, as to 766 hospitals because many of the
weights and wage index have not
required by section 1886(b)(3)(B) of the providers that received geographic
changed in this notice. As required by
Act, as amended by the Affordable Care reclassification will now be reclassified
section 1886(b)(3)(B)(xii), as added by
Act. The recalibration budget neutrality as a section 508 or receive a special
the Affordable Care Act, the market
factor published in the FY 2010 IPPS/ basket update was reduced by ¥0.25 exception wage index. Urban New
RY 2010 LTCH PPS final rule was percent and applied to the Federal England hospitals and rural Pacific
0.997941, which is applied to the standardized amount and the hospital- hospitals will experience a ¥0.3 and
standardized amount as determined in specific rates for SCHs and MDHs. ¥0.2 percent change in payments,
the final rule. The revised recalibration Consequentially, the wage and respectively due to reclassification
budget neutrality is now 0.997935, recalibration budget neutrality factors changes compared to the FY 2010 IPPS
applied to the revised FY 2010 were revised. In the FY 2010 IPPS/RY Final rule because many of the New
standardized amount. Consistent with 2010 LTCH PPS final rule, we computed England and Pacific hospitals that had
section 1886(d)(4)(C)(iii) of the Act, we a wage budget neutrality factor of been reclassified in the FY 2010 IPPS/
have calculated a recalibration budget 1.000411, and a recalibration budget RY 2010 LTCH PPS final rule are no
neutrality factor to account for the neutrality factor of 0.997926 (which is longer reclassified, and are instead
changes in MS–DRGs and relative applied to the Puerto Rico specific section 508 hospitals.
weights to ensure that the overall standardized amount and the hospital- 5. Effects of the Rural Floor and
payment impact is budget neutral. The specific rates). The product of the two Imputed Floor (Column 5)
change in the budget neutrality factor budget neutrality factors is the
did not change the impact to most cumulative wage and recalibration As discussed in the FY 2009 IPPS/RY
hospital categories as compared to the budget neutrality factor. The cumulative 2010 LTCH PPS final rule (73 FR
FY 2010 IPPS/RY 2010 LTCH PPS final wage and recalibration budget neutrality 49070), for FY 2010, hospitals receive a
rule. adjustment is 0.998347 or blended wage index that is 50 percent
2. Effect of the Wage Index Changes approximately ¥0.2 percent which is of a wage index with the State level
With the Application of the Wage applied to the national standardized rural and imputed floor budget
Budget Neutrality Factor (Column 2) amounts. In this notice, the recalibration neutrality adjustment and 50 percent of
budget neutrality factor is revised to a wage index with the national budget
Column 2 shows the impact of the FY 0.997935 and the wage budget neutrality neutrality adjustment.
2010 wage data, FY 2010 labor share factor has been revised to 1.000418, so
with the application of the wage budget The column compares the revised
the cumulative wage and recalibration
neutrality factor. For FY 2010, we post-reclassification FY 2010 wage
budget neutrality factor has been revised
calculate the wage budget neutrality index of providers with the rural floor
to 0.998352. This impact column shows
factor without regard to the lower labor the impact of these changes for FY 2010 and imputed floor adjustment with the
share of 62 percent for hospitals with a relative to the impact of these changes transitional rural floor budget neutrality
wage index less than or equal to 1, in as published in the FY 2010 IPPS/RY factors applied to the post-
accordance with section 1886(d)(3)(E)(i) 2010 LTCH PPS final rule. reclassification FY 2010 wage index of
of the Act. We refer readers to our FY providers with the rural floor and
2010 final rule (74 FR 44005) for a 4. Effects of MGCRB Reclassifications imputed floor adjustment with the
discussion of this policy. Because the (Column 4) transitional rural floor budget neutrality
market basket update to the Because section 3137(a) of Public Law factors applied as published in the FY
standardized amount was reduced by 111–148 extended certain special 2010 IPPS final rule. Many of the
0.25 percent as required under the exceptions and section 508 section 508 and special exception
Affordable Care Act, the wage budget reclassifications through FY 2010, we providers had been eligible for the rural
neutrality factor was revised. The wage analyzed the data of hospitals in labor floor, but they are no longer eligible for
budget neutrality factor published in the market areas affected by legislation, the rural floor because of the higher
FY 2010 IPPS/RY 2010 LTCH PPS final including hospitals with Lugar section 508/special exception wage
rule was 1.000407. For this notice, the redesignations, and made our best effort index they now receive. As a result, the
wage budget neutrality factor is revised to give those extended hospitals a wage rural floor budget neutrality figures have
to 1.000418. This column shows the index value that we believe results in been revised. (The revised figures are
impact of the revised wage budget the highest FY 2010 wage index for calculated using the corrected wage data
neutrality factor relative to the impact in which they are eligible. published October 7, 2009). The revised
the FY 2010 IPPS/RY 2010 LTCH PPS The impacts shown in Column 4 of national rural floor budget neutrality
final rule. The change in the budget Table 1 reflect the effects of MGCRB factor is 0.996686. The revised State
rural floor budget neutrality factors are budget neutrality), and the higher wage hospitals experience increases under the
listed in Table 4D–1in this notice. The index work area(s), weighted by the Affordable Care Act due to the
budget neutrality factors are blended overall percentage of workers who are extension of section 508
where the transitional rural floor budget employed in an area with a higher wage reclassifications, which offset the 0.25
neutrality factor is based on 50 percent index. Section 508 providers and market basket reduction; while rural
of the State rural floor budget neutrality special exception providers that may hospitals experience decreases under
factor and 50 percent of the national have qualified for the out-migration the Affordable Care Act due to the -0.25
rural floor budget neutrality factor. A adjustment in the FY 2010 IPPS/RY market basket reduction.
smoothing factor of 1.000010 is applied 2010 LTCH PPS final rule will now Among urban census divisions, the
to the blended rural floor budget receive their section 508 reclassification largest estimated payment increases
neutrality factor to ensure that the or special exception wage index instead. compared to the FY 2010 IPPS/RY 2010
blended budget neutrality factors This column shows the impact of the LTCH PPS final rule will be 0.2 in New
achieve overall budget neutrality. out-migration adjustment in this notice England and 0.3 percent in the Middle
Generally, the decreases in this compared to the out-migration Atlantic region, generally attributed to
column can be attributed to section 508 adjustment in the FY 2010 IPPS/RY section 508 reclassifications and special
hospitals that had been receiving the 2010 LTCH PPS final rule. The exception wage indexes. Urban
rural floor in the FY 2010 IPPS/RY 2010 provisions in the Affordable Care Act hospitals located in the West South
LTCH PPS final no longer needing a did not have a significant impact on the Central, West North Central, and
rural floor due to their section 508 section 505 outmigration adjustment Mountain region will experience a 0.1
reclassification. Urban New England which is reflected in the 0.0 percent percent decrease in payments compared
and Pacific hospitals will experience a change in payments compared to the FY to the FY 2010 IPPS/RY 2010 LTCH PPS
¥0.1 percent decrease in payments 2010 IPPS/RY 2010 LTCH PPS final final rule because of the 0.25 market
compared to the payment estimates rule. basket reduction applied to the second
published in the FY 2010 IPPS/RY 2010 half of FY 2010.
LTCH PPS final rule due to the floor 8. Effects of All Changes for FY 2010 Among the rural regions in Column 8,
because many of the hospitals in these (Column 8) rural mountain hospitals can expect a
regions had been receiving the rural Column 8 compares our estimate of -0.5 percent decrease in payments due
floor but are now receiving a section 508 the percent change in payments per case to the market basket reduction and
reclassification. for FY 2010 including the provisions in changes in the outlier estimates under
this notice compared to our percent the Affordable Care Act. Rural Pacific
6. Effects of the Application of Section change in payments per case for FY hospitals can expect a 0.2 percent
508 Reclassification (Column 6) 2010 as published in the FY 2010 IPPS/ increase in payments compared to the
This column displays the impact of RY 2010 LTCH PPS final rule. The FY 2010 IPPS/RY 2010 LTCH PPS final
the section 508/special exception average increase for all hospitals is rule because of higher wage indexes as
extensions through FY 2010. Because approximately 0.1 percent compared to a result of section 508 reclassification.
this provision is not budget neutral, the original estimated increase of Among special categories of rural
hospitals, overall, will experience a 0.2 payments per case for FY 2010 hospitals in Column 8, the MDHs will
percent increase in payments. All the published in the FY 2010 IPPS/RY 2010 receive an estimated decrease in
hospital categories, depending on LTCH PPS final rule. This increase payments of 0.2 percent, and the SCHs
whether section 508 and special includes the effects of the 0.25 percent will experience an estimated decrease in
exception providers are represented in reduction to the market basket update payments by 0.3 percent due to the
those categories, will either experience for FY 2010, which is used for market basket reduction.
an increase or no change in payments. determining payment for discharges on Urban hospitals reclassified for FY
Providers in urban New England and or after April 1, 2010, reducing FY 2010 2010 are anticipated to receive an
Middle Atlantic can expect increases in payments by 0.1 percent. This analysis increase of 0.2 percent, while urban
payments by 0.8 and 0.6 percent accounts for the impact of the extension hospitals that are not reclassified for FY
respectively because those regions have of certain special exceptions and section 2010 will not experience a change in
section 508 and special exception 508 reclassifications for FY 2010. This payments. Rural hospitals reclassifying
providers. Similarly, rural Pacific will non-budget neutral provision, which for FY 2010 are anticipated to receive a
experience a 0.6 percent increase in increases the wage index for 104 0.1 percent payment decrease and rural
payments due to the extensions. providers, results in an estimated hospitals that are not reclassifying are
increase in payments by 0.2 percent. estimated to receive a payment decrease
7. Effects of the Wage Index Adjustment There might also be interactive effects of 0.2 percent compared to the FY 2010
for Out-Migration (Column 7) among the various factors comprising IPPS/RY 2010 LTCH PPS final rule.
Section 1886(d) (13) of the Act, as the payment system that we are not able
added by section 505 of Public Law to isolate. 9. Analysis of Table II
108–173, provides for an increase in the The overall change in payments per Table II presents the projected impact
wage index for hospitals located in case for hospitals in FY 2010 as of the changes for FY 2010 for urban
certain counties that have a relatively specified in this notice is estimated to and rural hospitals and for the different
high percentage of hospital employees increase by 0.1 percent compared to the categories shown in Table I. It compares
who reside in the county, but work in payment estimates published in the FY the estimated payments per case for FY
a different area with a higher wage 2010 IPPS/RY 2010 LTCH PPS final 2010 including the provisions in this
index. Hospitals located in counties that rule. Hospitals in urban areas will notice with the average estimated
qualify for the payment adjustment experience an estimated 0.1 percent payments per case for FY 2010 as
receive an increase in the wage index increase in payments per case compared published in the FY 2010 IPPS/RY 2010
that is equal to a weighted average of the to the estimate published FY 2010 IPPS/ LTCH PPS final rule. Thus, the table
difference between the wage index of RY 2010 LTCH PPS final rule. Hospital presents, in terms of average dollar
the resident county, post- payments per case in rural areas are amounts paid per discharge, the
reclassification, post-floor (including estimated to decrease 0.1 percent. Urban combined effects of the changes
presented in Table I. The percentage average payments from Column 8 of

changes shown in the last column of Table I.
Table II equal the percentage changes in BILLING CODE 4120–01–P
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BILLING CODE 4120–01–C 2009. Because only discharges for half projected to result in a decrease of 0.2
D. Effects of Payment Rate Changes and of RY 2010 (that is, discharges occurring percent in estimated RY 2010 payments
Policy Changes Under the LTCH PPS on or after April 1, 2010) are paid under per discharge from the FY 2010 IPPS/RY
the revised RY 2010 standard Federal 2010 LTCH final rule to the revised RY
1. Introduction and General rate which incorporates the 0.25 2010 payments per discharge in this
Considerations percentage point reduction, we estimate notice.
In section II.F. of this notice, we are that LTCH payments will increase by The projected change in payments per
setting forth the revised payment rates 3.2 percent relative to RY 2009. In other discharge from the RY 2010 published
for the RY 2010 LTCH PPS in words, we estimate that LTCH payments in the FY 2010 IPPS/RY 2010 LTCH
accordance with the Affordable Care will be reduced by 0.1 percent relative final rule to estimated RY 2010
Act. In this section of the notice, we to our estimates published in the FY payments per discharge in this notice is
discuss the impact of the changes to the 2010 IPPS/RY 2010 LTCH final rule. ¥0.1 percent (shown in Column 7).
payment rates, factors, and other In the FY 2010 IPPS/RY 2010 LTCH This projected decrease in payments is
payment rate policies related to the final rule (74 FR 44230), we had attributable to the impacts of the change
LTCH PPS that are presented in the estimated RY 2009 LTCH PPS payments to the standard Federal rate required
notice in terms of their estimated fiscal to be approximately $4.609 billion and under the Affordable Care Act under
impact on the Medicare budget and on RY 2010 LTCH PPS payments to be which discharges occurring on or after
LTCHs. approximately $4.762 billion which April 1, 2010 (¥0.2 percent in Column
Currently, our database of 399 LTCHs resulted in a $153 million projected 6) are paid.
includes the data for 81 nonprofit increase in estimated aggregate LTCH
(voluntary ownership control) LTCHs PPS payments from RY 2009 to RY 2. Impact on Rural Hospitals
and 267 proprietary LTCHs. Of the 2010. Based on the changes in this For purposes of section 1102(b) of the
remaining 51 LTCHs, 12 LTCHs are notice, we now estimate RY 2010 LTCH Act, we define a small rural hospital as
government-owned and operated and PPS payments to be approximately a hospital that is located outside of a
the ownership type of the other 39 $4.752 billion, which results in a Metropolitan Statistical Area and has
LTCHs is unknown. In the impact projected increase in aggregate LTCH fewer than 100 beds. As shown in Table
analysis, we are using the rates, factors, PPS payments of $142 million in RY IV, we are projecting a 0.1 decrease in
and policies presented in this notice, 2010 relative to RY 2009. Our RY 2010 estimated payments per discharge for
including the revised RY 2010 rate that estimate is approximately $11 million the RY 2010 LTCH as compared to the
accounts for the 0.25 reduction to the less than our estimate in the FY 2010 RY 2010 estimated payments per
market basket update under which IPPS/RY 2010 LTCH final rule. discharge published in the FY 2010
discharges on or after April 1, 2010 are Table IV shows the payment impact of IPPS/RY 2010 LTCH final rule for rural
paid. As discussed in the FY 2010 IPPS/ the changes described in this notice LTCHs that will result from the changes
RY 2010 LTCH PPS final rule (74 FR required under the Affordable Care Act presented in this notice (that is, the
44022), we updated the RY 2009 effective for RY 2010. Table IV shows revised update to the standard Federal
standard Federal rate by 2.0 percent to the impact of the payments as projected rate discussed in section II.F.1. of this
establish the RY 2010 standard Federal in the FY 2010 IPPS/RY 2010 LTCH notice). This estimated impact is based
rate at $39,896.65. As required under final rule and the change in payments on the data for the 26 rural LTCHs in
Public Law 111–148 and Public Law effective in this notice for RY 2010. We our database of 399 LTCHs, for which
111–152, we have reduced the annual estimate a 0.1 percent decrease in complete data were available.
update to the standard Federal rate by payments per discharge in this notice
0.25 percentage points such that that RY compared to the RY 2010 estimated 3. Anticipated Effects of LTCH PPS
2010 standard Federal rate is payments per discharge published in Payment Rate Change and Policy
$39,794.95. Discharges occurring on or the FY 2010 IPPS/RY 2010 LTCH final Changes
after April 1, 2010 are paid under the rule. This decrease is attributable to the We discuss the impact of the changes
revised standard Federal rate consistent 0.25 percentage point reduction to the to the payment rates, factors, and other
with section 3401(p) of Public Law 111– annual update applied to the standard payment rate policies under the LTCH
148. In the FY 2010 IPPS/RY 2010 Federal rate as required by sections PPS for RY 2010 (in terms of their
LTCH final rule (74 FR 44233), we had 1886(m)(3)(ii) and (4) of the Act. As estimated fiscal impact on the Medicare
estimated that LTCH payments would Table IV shows, the change attributable budget and on LTCHs) in section II.F. of
increase by 3.3 percent relative to RY solely to the standard Federal rate is this notice.
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a. Budgetary Impact • Location: Large urban/other urban/ aggregate impact of the LTCH PPS
Section 123(a)(1) of the BBRA rural. among various classifications of LTCHs.
requires that the PPS developed for • Participation date. • The first column, LTCH
LTCHs ‘‘maintain budget neutrality.’’ We • Ownership control. Classification, identifies the type of
believe that the statute’s mandate for • Census region. LTCH.
budget neutrality applies only to the • Bed size. • The second column lists the
first year of the implementation of the To estimate the impacts of the number of LTCHs of each classification
LTCH PPS (that is, FY 2003). Therefore, payment rates and policy changes type.
in calculating the FY 2003 standard among the various categories of existing • The third column identifies the
Federal rate under § 412.523(d)(2), we providers, we used LTCH cases from the number of LTCH cases.
set total estimated payments for FY FY 2008 MedPAR file to estimate
• The fourth column shows the
2003 under the LTCH PPS so that payments for RY 2010 published in the
estimated original RY 2010 payment per
estimated aggregate payments under the FY 2010 IPPS/RY 2010 LTCH final rule
discharge (that is, prior to the enactment
LTCH PPS were estimated to equal the and to estimate revised payments for RY
of the Affordable Care Act, as described
amount that would have been paid if the 2010 in accordance with the changes in
above).
LTCH PPS had not been implemented. this notice for 399 LTCHs.
• The fifth column shows the
As discussed in section IV.D.1. of this c. Calculation of Prospective Payments estimated revised RY 2010 payment per
notice, we project an increase in
For purposes of this impact analysis, discharge (that is, reflecting the
aggregate LTCH PPS payments in RY
to estimate per discharge payments provisions of the Affordable Care Act, as
2010 of approximately $142 million
under the LTCH PPS, we simulated described above).
based on the 399 LTCHs in our
database. payments on a case-by-case basis using • The sixth column shows the
LTCH claims from the FY 2008 MedPAR percentage change in estimated
b. Impact on Providers files. For modeling estimated LTCH PPS payments per discharge due to changes
The basic methodology for payments for RY 2010 in this notice, we to the standard Federal rate (as
determining a per discharge LTCH PPS applied the revised RY 2010 standard discussed in section II.F. of this notice).
payment is set forth in § 412.515 Federal rate (that is, $39,794.95, under It compares the percent change in
through § 412.536. In addition to the which LTCH discharges occurring on or estimated payments per discharge in the
basic MS–LTC–DRG payment (standard after April 1, 2010, and through originally published FY 2010 IPPS/RY
Federal rate multiplied by the MS–LTC– September 30, 2010 are paid). For 2010 LTCH PPS final rule (prior to the
DRG relative weight), we make modeling estimated LTCH PPS enactment of the Affordable Care Act) to
adjustments for differences in area wage payments for RY 2010 as published in the revised estimated payments per
levels, COLA for Alaska and Hawaii, the FY 2010 IPPS/RY 2010 LTCH final discharge in this RY 2010 LTCH PPS
and short-stay outliers (SSOs). rule, we applied the published RY 2010 notice (reflecting the provisions of the
Furthermore, LTCHs may also receive standard Federal rate of $39,896.65, Affordable Care Act).
high cost outlier (HCO) payments for under which LTCH discharges occurring • The seventh column shows the
those cases that qualify based on the on or after October 1, 2009 through percentage change in estimated
threshold established each rate year. March 31, 2010 are paid). payments per discharge from the
Hospital groups were based on These impacts reflect the estimated originally published RY 2010 LTCH PPS
characteristics provided in the OSCAR ‘‘losses’’ or ‘‘gains’’ among the various (prior to the enactment of the Affordable
data, FY 2004 through FY 2006 cost classifications of LTCHs from the Care Act, as shown in Column 4) to the
report data in HCRIS, and PSF data. previously published 2010 LTCH PPS revised RY 2010 LTCH PPS (reflecting
Hospitals with incomplete rate year to the revised 2010 LTCH PPS the provisions of the Affordable Care
characteristics were grouped into the rate year based on the payment rates Act, as shown in Column 5) for all
‘‘unknown’’ category. Hospital groups and policy changes presented in this changes.
include the following: notice. Table IV illustrates the estimated BILLING CODE 4120–01–P
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BILLING CODE 4120–01–C 2010, the required 0.25 percentage point paying prospectively for LTCH services
d. Results reduction will only reduce aggregate RY would enhance the efficiency of the
2010 payments by 0.1 percent. All Medicare program.
Based on the most recent available hospital categories are equally affected
data (as described previously for 399 E. Alternatives Considered
by the provision and will all experience
LTCHs), we have prepared the following an approximate 0.1 percent decrease in This notice provides descriptions of
summary of the impact (as shown in payments relative to the payment the statutory provisions that are
Table IV) of the LTCH PPS payment rate estimates in the FY 2010 IPPS/RY 2010 addressed, identifies policies, and
and policy changes presented in this LTCH final rule. presents rationales for our decisions
notice. The impact analysis in Table IV and, where relevant, alternatives that
shows that estimated payments per 4. Effect on the Medicare Program
were considered.
discharge are expected to decrease As noted previously, we project that
approximately 0.1 percent, on average, the provisions of this notice will result F. Overall Conclusion
for all LTCHs comparing the RY 2010 in an increase in estimated aggregate 1. Acute Care Hospitals
estimated LTCH PPS payments LTCH PPS payments in RY 2010 of
published in the FY 2010 IPPS/RY 2010 approximately $142 million (or about Table I of section IV.B. of this notice
LTCH PPS final rule to the RY 2010 0.1 percent less than previously demonstrates the estimated
estimated LTCH PPS payments as a estimated in the FY 2010 IPPS/RY 2010 distributional impact of the IPPS budget
result of the payment rate and policy LTCH final rule) for the 399 LTCHs in neutrality requirements for the MS–DRG
changes presented in this notice. The our database. and wage index changes, and for the
0.1 percent decrease is due to the 0.25 wage index reclassifications under the
percentage point reduction to the 5. Effect on Medicare Beneficiaries MGCRB. Table I also shows an overall
annual update to the standard Federal Under the LTCH PPS, hospitals increase of 0.1 percent in operating
rate required under the Affordable Care receive payment based on the average payments in this notice relative to the
Act. Because only discharges on or after resources consumed by patients for each operating payments published in the FY
April 1, 2010 will be paid under the diagnosis. We do not expect any 2010 IPPS/RY 2010 LTCH PPS final
revised standard Federal rate, which changes in the quality of care or access rule. We estimate that operating
incorporates the 0.25 percentage point to services for Medicare beneficiaries payments will increase by
reduction to the annual update for RY under the LTCH PPS, but we expect that approximately $75.7 million in FY 2010
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relative to our published FY 2010 IPPS/RY 2010 LTCH PPS final rule and 399 LTCHs in our database, we estimate
estimate in the FY 2010 IPPS/RY 2010 correction notice. The discussions that RY 2010 LTCH PPS payments will
LTCH PPS final rule. This accounts for presented in the previous pages, in increase $142 million relative to RY
the projected savings associated with combination with the rest of this notice, 2009, which is a decrease of
the 0.25 percentage point reduction to constitute a regulatory impact analysis. approximately $11 million (or about 0.1
the market basket required by section percent) relative to the estimates of RY
2. LTCHs
1886(b)(3)(B) of the Act, as amended by 2010 LTCH PPS payments previously
the Affordable Care Act, and the Overall, LTCHs are projected to published in the FY 2010 IPPS/RY 2010
extension of section 508 reclassification experience an increase in estimated LTCH PPS final rule.
(a non-budget neutral provision) payments per discharge in RY 2010
required under the Affordable Care Act. relative to RY 2009. However, our G. Accounting Statements
We estimate that capital payments will projected increase in estimated 1. Acute Care Hospitals
increase by 1.9 percent per case relative payments per discharge in RY 2010 has
to FY 2009, as shown in Table III of decreased due to the applicable changes As required by OMB Circular A–4
section IV.C. of this notice. Therefore, specified under the Affordable Care Act. (available at http://www.whitehousegov/
we project that the increase in capital Specifically, the decrease in our RY omb/circulars/a004/a-4.pdf), in Table V.
payments in FY 2010 compared to FY 2010 payment estimates is primarily below, we have prepared an accounting
2009 will be approximately $173 due to the ¥0.25 percentage point statement showing the classification of
million, which is $19 million higher reduction to annual update applied to the expenditures associated with the
than what was published in the FY 2010 the standard Federal rate under which provisions of this notice as they relate
IPPS/RY 2010 LTCH PPS correction discharges occurring on or after April 1, to acute care hospitals. This table
notice (74 FR 51507). The cumulative 2010 are paid. In the impact analysis, provides our best estimate of the change
operating and capital payments should we are using the rates, factors, and in Medicare payments to providers as a
result in a net increase of $94.7 million policies presented in this notice to result of the changes to the IPPS
to IPPS providers under the changes in estimate the change in payments for the presented in this notice. All
this notice relative to our previously 2010 LTCH PPS rate year. Accordingly, expenditures are classified as transfers
published estimates in the FY 2010 based on the best available data for the to Medicare providers.
TABLE V—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES UNDER THE IPPS FROM PUBLISHED
FY 2010 TO REVISED FY 2010
Category Transfers
Annualized Monetized Transfers .............................................................. $94.7 million.

From Whom to Whom .............................................................................. Federal Government to IPPS Medicare Providers.
Total ................................................................................................... $94.7 million.
2. LTCHs 399 LTCHs in our database that are to changes to the LTCH PPS. Table VI
subject to payment under the LTCH provides our best estimate of the
As discussed in section IV.D. of this PPS. Therefore, as required by OMB increase in Medicare payments under
notice, the impact analysis for the Circular A–4 (available at http:// the LTCH PPS as a result of the
changes under the LTCH PPS for this www.whitehouse.gov/omb/circulars/ provisions presented in this notice
notice projects an increase in estimated a004/a-4.pdf), in Table VI below, we based on the data for the 399 LTCHs in
aggregate payments of approximately have prepared an accounting statement our database. All expenditures are
$142 million compared to RY 2009, a showing the classification of the classified as transfers to Medicare
decrease of $11 million compared our expenditures associated with the providers (that is, LTCHs).
previously published estimates for the provisions of this notice as they relate
TABLE VI—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES FROM THE PUBLISHED 2010 LTCH
PPS RATE YEAR TO THE REVISED 2010 LTCH PPS RATE YEAR
Category Transfers
Annualized Monetized Transfers .............................................................. Positive transfer—Estimated increase in expenditures: $11 million.
From Whom to Whom .............................................................................. LTCH PPS Medicare Providers to Federal Government.
Total ................................................................................................... $11 million.

H. Executive Order 12866 Table 1B—National Adjusted Operating Urban Areas by CBSA—FY 2010 (April 1,
Standardized Amounts, Labor/Nonlabor (62 2010 through September 30, 2010)
In accordance with the provisions of Percent Labor Share/38 Percent Nonlabor Table 4B.—Wage Index and Capital
Executive Order 12866, the Executive Share If Wage Index Is Less Than or Equal Geographic Adjustment Factor (GAF) for
Office of Management and Budget To 1); Applicable to payments made for Rural Areas by CBSA—FY 2010 (April 1,
reviewed this notice. discharges on or after October 1, 2009 2010 through September 30, 2010)
Authority: (Catalog of Federal Domestic through discharges on or before September Table 4C.—Wage Index and Capital
Assistance Program No. 93.773, Medicare— 30, 2010 Geographic Adjustment Factor (GAF) for
Hospital Insurance; and Program No. 93.774, Table 1C—Adjusted Operating Hospitals That Are Reclassified by CBSA—
Medicare—Supplementary Medical Standardized Amounts for Puerto Rico, FY 2010 (April 1, 2010 through September
Insurance Program) Labor/Nonlabor; Applicable to payments 30, 2010)
Dated: May 13, 2010. made for discharges on or after October 1, Table 4D–1.—State Specific Rural Floor
2009 through discharges on or before Budget Neutrality Factors—FY 2010 (April 1,
Marilyn Tavenner, September 30, 2010 2010 through September 30, 2010)
Acting Administrator, Centers for Medicare Table 1D—Capital Standard Federal Table 4D–2.—Urban Areas with Hospitals
& Medicaid Services. Payment Rate: Applicable to payments made Receiving the Statewide Rural Floor or
Approved: May 18, 2010. for discharges on or after October 1, 2009 Imputed Wage Index— FY 2010 (April 1,
Kathleen Sebelius, through discharges on or before September 2010 through September 30, 2010)
Secretary. 30, 2010 Table 4J.—Out-Migration Adjustment—FY
Table 1E.—LTCH Standard Federal 2010 (April 1, 2010 through September 30,
Addendum Prospective Payment Rate; Applicable to 2010)
This addendum includes tables referred to payments made for discharges on or after Table 9B.—Hospital Reclassifications and
throughout the notice which contain data October 1, 2009 through discharges on or Redesignations by Individual Hospital Under
relating to the final FY 2010 wage indices before September 30, 2010 Section 508 of Pub. L. 108–173 for FY 2010
and the hospital reclassifications and Table 2.—Hospital Case-Mix Indexes For (Revised as of April 1, 2010 and Effective
payment amounts for operating and capital- Discharges Occurring In Federal Fiscal Year October 1, 2009 through September 30, 2010)
related costs discussed in section II. of this 2008; Hospital Wage Indexes For Federal Table 10.—Geometric Mean Plus the Lesser
notice. Fiscal Year 2010 (April 1, 2010 through of 0.75 of the National Adjusted Operating
Table 1A—National Adjusted Operating September 30, 2010); Hospital Average Standardized Payment Amount (Increased to
Standardized Amounts, Labor/Nonlabor (69.7 Hourly Wages For Federal Fiscal Years 2008 Reflect the Difference Between Costs and
Percent Labor Share/30.3 Percent Nonlabor (2004 Wage Data), 2009 (2005 Wage Data), Charges) or 0.75 of One Standard Deviation
Share If Wage Index Is Greater Than 1); And 2010 (2006 Wage Data); and 3–Year of Mean Charges by Diagnosis-Related Group
Applicable to payments made for discharges Average of Hospital Average Hourly Wages (DRG)—April 2010 (Applicable to
on or after October 1, 2009 through Table 4A.—Wage Index and Capital Applications for FY 2011 New Technology
discharges on or before September 30, 2010 Geographic Adjustment Factor (GAF) for Add-On Payments)
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[FR Doc. 2010–12563 Filed 5–21–10; 4:15 pm]

EN02JN10.238</GPH>
Wednesday,
June 2, 2010
Part III
Department of
Energy
10 CFR Part 430
Energy Conservation Program for
Consumer Products: Test Procedure for
Residential Central Air Conditioners and
Heat Pumps; Proposed Rule
mstockstill on DSKH9S0YB1PROD with PROPOSALS3
DEPARTMENT OF ENERGY Technologies Program, Mailstop EE–2J, B. Summary of the Test Procedure
1000 Independence Avenue, SW., Revisions
10 CFR Part 430 Washington, DC 20585–0121. Please 1. Modify the Definition of ‘‘Tested
submit one signed paper original. Combination’’ for Residential Multi-Split
[Docket No. EERE–2009–BT–TP–0004] Systems
• Hand Delivery/Courier: Ms. Brenda
2. Add Alternative Minimum External
RIN 1904–AB94 Edwards, U.S. Department of Energy, Static Pressure Requirements for Testing
Building Technologies Program, 6th Ducted Multi-Split Systems
Energy Conservation Program for Floor, 950 L’Enfant Plaza, SW., 3. Clarify That Optional Tests May Be
Consumer Products: Test Procedure Washington, DC 20024. Telephone: Conducted Without Forfeiting Use of the
for Residential Central Air (202) 586–2945. Please submit one Default Value(s)
Conditioners and Heat Pumps signed paper original. 4. Allow a Wider Tolerance on Air Volume
Instructions: All submissions must Rate To Yield More Repeatable
AGENCY: Office of Energy Efficiency and Laboratory Setups
Renewable Energy, Department of include the agency name and docket
number or RIN for this rulemaking. For 5. Change the Magnitude of the Test
Energy. Operating Tolerance Specified for the
detailed instructions on submitting External Resistance to Airflow and the
ACTION: Notice of proposed rulemaking
comments and additional information Nozzle Pressure Drop
and public meeting. on the rulemaking process, see section 6. Modify Third-Party Testing
SUMMARY: The U.S. Department of V., ‘‘Public Participation,’’ of this Requirements When Charging the Test
Energy (DOE) proposes amendments to document. Unit
its test procedure for residential central Docket: For access to the docket to 7. Clarify Unit Testing Installation
read background documents or Instruction and Address Manufacturer
air conditioners and heat pumps. The and
proposed amendments would add comments received, visit the U.S.
Department of Energy, 6th Floor, 950 Third-Party Testing Laboratory
requirements for the calculation of Interactions
sensible heat ratio, incorporate a L’Enfant Plaza, SW., Washington, DC
8. When Determining the Cyclic
method to evaluate off mode power 20024, (202) 586–2945, between 9 a.m.
Degradation Coefficient CD, Correct the
and 4 p.m., Monday through Friday, Indoor-Side Temperature Sensors Used
consumption, and add parameters for
except Federal holidays. Please call Ms. During the Cyclic Test To Align With the
establishing regional measures of energy
Brenda Edwards at (202) 586–2945 for Temperature Sensors Used During the
efficiency. DOE will hold a public
additional information regarding Companion Steady-State Test, If
meeting to receive and discuss
visiting the Resource Room. Please note: Applicable
comments on the proposal. 9. Clarify Inputs for the Demand Defrost
DOE’s Freedom of Information Reading
DATES: DOE will hold a public meeting Room (Forrestal Building, Room 1E– Credit Equation
in Washington, DC on Friday, June 11, 190) no longer houses rulemaking 10. Add Calculations for Sensible Heat
2010 from 9 a.m. to 4 p.m. The purpose materials. Ratio
of the meeting is to receive comments 11. Incorporate Changes To Cover Testing
and to help DOE understand potential FOR FURTHER INFORMATION CONTACT: Mr. and Rating of Ducted Systems Having
issues associated with this proposed Wes Anderson, U.S. Department of More Than One Indoor Blower
rulemaking. DOE must receive requests Energy, Office of Energy Efficiency and 12. Add Changes To Cover Triple-Capacity,
Renewable Energy, Building Northern Heat Pumps
to speak at the meeting before 4 p.m. 13. Specify Requirements for the Low-
Friday, June 4, 2010. DOE must receive Technologies Program, EE–2J, 1000
Independence Avenue, SW., Voltage Transformer Used When Testing
a signed original and an electronic copy Only Air Conditioners and Heat Pumps
of statements to be given at the public Washington, DC 20585–0121.
and Require Metering of All Sources of
meeting before 4 p.m. Friday, June 4, Telephone: (202) 586–7335. E-mail: Energy Consumption During All Tests
2010. Wes.Anderson@ee.doe.gov. 14. Add Testing Procedures and
Ms. Francine Pinto, U.S. Department Calculations for Off Mode Energy
DOE will accept comments, data, and
of Energy, Office of the General Counsel, Consumption
other information regarding this notice
GC–71, 1000 Independence Avenue, 15. Add Parameters for Establishing
of proposed rulemaking (NOPR) before
SW., Washington, DC 20585. Telephone: Regional Standards
or after the public meeting, but no later a. Use a Bin Method for Single-Speed SEER
(202) 586–7432. E-mail: Francine.Pinto
than August 16, 2010. See section V., Calculations for the Hot-Dry Region and
@hq.doe.gov.
‘‘Public Participation,’’ of this NOPR for National Rating
details. b. Add New Hot-Dry Region Bin Data
I. Authority and Background
ADDRESSES: The public meeting will be A. Authority c. Add Optional Testing at the A and B
held at the U.S. Department of Energy, B. Background Test Conditions With the Unit in a Hot-
Forrestal Building, Room 8E–089. You II. Summary of the Proposed Rule Dry Region Setup
III. Discussion d. Add a New Equation for Building Load
may submit comments, identified by Line in the Hot-Dry Region
docket number EERE–2009–BT–TP– A. Framework Comment Summary and
DOE Responses 16. Add References to ASHRAE 116–1995
0004 and/or Regulation Identifier (RA 2005) for Equations That Calculate
1. Test Procedure Schedule
Number (RIN) 1904–AB94, by any of the 2. Bench Testing of Third-Party Coils SEER and HSPF for Variable Speed
following methods: 3. Defaults for Fan Power Systems
• Federal eRulemaking Portal http:// 4. Changes to External Static Pressure 17. Update Test Procedure References to
www.regulations.gov.: Follow the Values the Current Standards of AHRI and

instructions for submitting comments. 5. Fan Time Delay Relays ASHRAE
• E-mail: RCAC-HP-2009-TP- 6. Inverter-Driven Compressors IV. Regulatory Review
7. Addition of Calculation for Sensible A. Review Under Executive Order 12866
0004@ee.doe.gov. Include the docket
Heat Ratio B. Review Under the National
number EERE–2009–BT–TP–0004 and/ Environmental Policy Act
8. Regional Rating Procedure
or RIN number 1904–AB94 in the 9. Address Testing Inconsistencies for C. Review Under the Regulatory Flexibility
subject line of the message. Ductless Mini- and Multi-Splits Act
• Postal Mail: Ms. Brenda Edwards, 10. Standby Power Consumption and D. Review Under the Paperwork Reduction
U.S. Department of Energy, Building Measurement Act
E. Review Under the Unfunded Mandates period of use, as determined by the 6295(o)(6)(C)(i)) Accordingly, today’s
Reform Act of 1995 Secretary [of Energy], and shall not be proposed test procedure rulemaking
F. Review Under the Treasury and General unduly burdensome to conduct.’’ (42 includes additions that specifically
Government Appropriations Act, 1999 U.S.C. 6293(b)(3)) DOE’s existing test address sections 306 and 310 of EISA
G. Review Under Executive Order 13132
H. Review Under Executive Order 12988
procedures for central air conditioners 2007.
I. Review Under the Treasury and General and heat pumps adopted pursuant to
B. Background
Government Appropriations Act, 2001 these provisions appear under Title 10
J. Review Under Executive Order 13211 of the Code of Federal Regulations (CFR) Most portions of the existing test
K. Review Under Executive Order 12630 part 430, subpart B, appendix M procedure for central air conditioners
L. Review Under Section 32 of the Federal (‘‘Uniform Test Method for Measuring and heat pumps were originally
Energy Administration (FEA) Act of 1974 the Energy Consumption of Central Air published as a final rule in the Federal
V. Public Participation Conditioners and Heat Pumps’’). Register on December 27, 1979. 44 FR
A. Attendance at Public Meeting Further, if any rulemaking amends a 76700. DOE modified the test procedure
B. Procedure for Submitting Requests To test procedure, DOE must determine ‘‘to on March 14, 1988, to expand coverage
Speak what extent, if any, the proposed test to variable-speed central air
C. Conduct of Public Meeting conditioners and heat pumps, to address
D. Submission of Comments
procedure would alter the measured
E. Issues on Which DOE Seeks Comment energy efficiency * * * of any covered testing of split non-ducted units, and to
VI. Approval of the Office of the Secretary product as determined under the change the method for crediting heat
existing test procedure.’’ (42 U.S.C. pumps that provide a demand defrost
I. Authority and Background 6293(e)(1)) If it determines that the capability. 53 FR 8304.
A. Authority amended test procedure would alter the The next revision of the central air
measured efficiency of a covered conditioners and heat pumps test
Title III of the Energy Policy and product, DOE must amend the procedure was published as a final rule
Conservation Act (42 U.S.C. 6291 et applicable energy conservation standard on October 11, 2005, and became
seq.; EPCA or the Act) sets forth a accordingly. (42 U.S.C. 6293(e)(2)) The effective on April 10, 2006. 70 FR
variety of provisions designed to amendments proposed in today’s 59122. The October 2005 final rule
improve energy efficiency. Part A of rulemaking will not alter the measured provided a much needed updating to
Title III (42 U.S.C. 6291–6309) efficiency, as represented in the reference current standards, adopted
establishes the ‘‘Energy Conservation regulating metrics of SEER and HSPF. improved measurement capabilities,
Program for Consumer Products Other Thus, today’s proposed test procedure and presented more detail on how to
Than Automobiles.’’ (This part was changes can be adopted without conduct the laboratory testing. The 2005
originally titled Part B; however, it was amending the standards for SEER and final rule also expanded coverage for
redesignated Part A in the United States HSPF. equipment features previously not
Code for editorial reasons.) The program On December 19, 2007, the President covered (e.g., two-capacity northern
covers consumer products and certain signed the Energy Independence and heat pumps, heat comfort controllers,
commercial products (collectively Security Act of 2007 (EISA 2007; Pub. triple-split systems, etc.). During this
‘‘covered products’’), including L. 110–140), which contains numerous revision process, the test procedure was
residential central air conditioners and amendments to EPCA. Section 310 of significantly reorganized in an effort to
heat pumps having rated cooling EISA 2007 established that the improve its readability.
capacities less than 65,000 British Department’s test procedures for all On July 20, 2006, DOE published a
thermal units/hour (Btu/h). (42 U.S.C. covered products must account for proposed rule to consider additional
6291(1)–(2), (21) and 6292(a)(3)) standby and off mode energy changes to the test procedure in
Under the Act, the overall program consumption. (42 U.S.C. 6295(gg)(2)(A)) response to issues interested parties
consists of testing, labeling, and Federal DOE must modify the test procedures to submitted before the October 2005
energy conservation standards. integrate such energy consumption into publication of the final rule. 71 FR
Manufacturers of covered products must the energy descriptor(s) for each 41320. DOE determined that it was
use the test procedures prescribed under product, unless the Secretary appropriate to consider additional
EPCA to measure energy efficiency, to determines that ‘‘(i) the current test modifications to the test procedure for
certify to DOE that products comply procedures for a covered product the following reasons: (1) To implement
with EPCA’s energy conservation already fully account for and test procedure revisions for new energy
standards, and for representing the incorporate the standby mode and off conservation standards for
energy efficiency of their products. mode energy consumption of the small-duct, high-velocity (SDHV)
Similarly, DOE must use these test covered product; or (ii) such an systems; (2) to address test procedure
procedures when determining whether integrated test procedure is technically waivers for multi-split systems; and (3)
the equipment complies with energy infeasible * * * in which case the to address interested parties’ concerns
conservation standards adopted Secretary shall prescribe a separate about sampling and rating after new
pursuant to EPCA. standby mode and off mode energy use energy conservation standards became
Section 323 of EPCA (42 U.S.C. 6293) test for the covered product, if effective on January 23, 2006. (10 CFR
sets forth generally applicable criteria technically feasible. (42 U.S.C. 6295 432.32(c)(2)) DOE issued a final rule
and procedures for DOE’s adoption and (gg)(2)(A)) In addition, section 306(a) of adopting relevant amendments to the
amendment of such test procedures. For EISA 2007 amended EPCA section central air conditioner and heat pump
example, the Act states that ‘‘[a]ny test 325(o)(6) to consider one or two regional test procedures on October 22, 2007,
procedures prescribed or amended standards for central air conditioners which became effective on April 21,
under this section shall be reasonably and heat pumps (among other products) 2008. 72 FR 59906. This latter final rule
designed to produce test results which in addition to a base national standard. was published before EISA’s
measure energy efficiency, energy use (42 U.S.C. 6295(o)(6)(B)) EPCA implementation on December 19, 2007;
* * * or estimated annual operating 325(o)(6)(C)(i) requires that DOE therefore, the test procedures did not
cost of a covered product during a consider only regions made up of incorporate the requirements in sections
representative average use cycle or contiguous States. (42 U.S.C. 306 and 310 of EISA 2007.
While making changes necessary to Subsequently, and consistent with the Section III. A. provides a more in-
comply with the amendments in EISA second provision above, manufacturers depth discussion on those comments
2007, DOE is considering additional would be required to use the amended that questioned or disagreed with DOE’s
changes to the test procedure that were test procedures’ off mode and regional positions in the framework document.
identified after finalizing the prior cooling mode provisions to demonstrate Section III. B. provides a summary of
rulemaking. compliance with DOE’s energy the proposed changes to the test
conservation standards on the effective procedure, including
II. Summary of the Proposed Rule
date of a final rule establishing amended 1. Modify the definition of ‘‘tested
DOE proposes amendments to its test energy conservation standards for these combination’’ for residential multi-split
procedure for residential central air products that address off mode energy systems
conditioners and heat pumps. The consumption and/or regional cooling 2. Add Alternative Minimum External
amendments would add calculations for mode performance, at which time the Static Pressure Requirements for Testing
determination of sensible heat ratio limiting statement in the DOE test Ducted Multi-Split Systems
(SHR), would incorporate a method to procedure would be revised or removed. 3. Clarify that Optional Tests May Be
evaluate off mode power consumption, Further clarification would also be Conducted Without Forfeiting Use of
and would add parameters for provided that as of 180 days after the Default Value(s)
establishing regional measures of energy publication of a test procedure final 4. Allow a Wider Tolerance on Air
efficiency. rule, any representations as to the off Volume Rate to Yield More Repeatable
In addition to statutory requirements mode energy consumption and regional Laboratory Setups
for amended test procedures, EISA 2007 cooling mode performance of the 5. Change the Magnitude of the Test
has three separate provisions regarding products that are the subject of this Operating Tolerance Specified for the
the inclusion of standby mode and off rulemaking would need to be based External Resistance to Airflow and the
mode energy use in any energy Nozzle Pressure Drop
upon results generated under the
conservation standard that have bearing 6. Modify Third-Party Testing
applicable provisions of this test
on the current test procedure Requirements when Charging the Test
procedure. (42 U.S.C. 6293(c)(2)) A
rulemaking. First, test procedure Unit
separate standard for off-mode energy
amendments to include standby mode 7. Clarify Unit Testing Installation
consumption is required if a single
and off mode energy consumption shall Instruction and Address Manufacturer
amended or new standard is not
not be used to determine compliance and Third-Party Testing Laboratory
feasible. (42 U.S.C. 6295(gg)(3)(B))
with standards established prior to the Interactions
adoption of such test procedure III. Discussion 8. When Determining the Cyclic
amendments. (42 U.S.C. 6295(gg)(2)(C)) The current standards rulemaking Degradation Coefficient CD, Correct the
Second, standby mode and off mode preliminary analysis for residential Indoor-Side Temperature Sensors Used
energy use must be included into a central air conditioners and heat pumps During the Cyclic Test to Align with the
single amended or new standard for a is ready for stakeholder review and Temperature Sensors Used During the
covered product adopted in a final rule comment. This preliminary analysis Companion Steady-State Test, If
after July 1, 2010. Finally, a separate follows the first step in the standards Applicable
standard for standby mode and off mode rulemaking process, the release of the 9. Clarify Inputs for the Demand
energy consumption is required if a Defrost Credit Equation
framework document (http://
single amended or new standard is not 10. Add Calculations for Sensible
www1.eere.energy.gov/buildings/
feasible. (42 U.S.C. 6295(gg)(3)(B)) Heat Ratio
In order to accommodate the above- appliance_standards/residential/pdfs/
cac_framework.pdf) and the subsequent 11. Incorporate Changes to Cover
mentioned first provision, DOE clarifies Testing and Rating of Ducted Systems
that today’s proposed amended test June 12, 2008 public meeting. At and
following this latter meeting, Having More than One Indoor Blower
procedure would not alter the measure 12. Add Changes To Cover Triple-
of energy efficiency used in existing stakeholder comments were received,
some of which apply to today’s Capacity, Northern Heat Pumps.
energy conservation standards; 13. Specify Requirements for the Low-
therefore, this proposal would neither proposed test procedure.
In formulating today’s notice of Voltage Transformer Used when Testing
affect a manufacturer’s ability to Coil-Only Air Conditioners and Heat
demonstrate compliance with proposed rulemaking (NOPR), DOE
considered these test procedure related Pumps and Require Metering of All
previously established standards nor Sources of Energy Consumption During
require retesting and rerating of existing comments and, where appropriate,
proposed changes to the test procedure. All Tests
units that are already certified. These 14. Add Testing Procedures and
amended test procedures would become Moreover, DOE responses to stakeholder
comments are provided in the following Calculations for Off Mode Energy
effective, in terms of adoption into the Consumption
CFR, 30 days after the date of subject areas:
1. Test Procedure Schedule 15. Add Parameters for Establishing
publication in the Federal Register of Regional Standards
2. Bench Testing of Third Party coils
the final rule in this test procedure 3. Defaults for Fan Power As part of today’s rulemaking, DOE
rulemaking. However, DOE is proposing 4. Changes to External Static Pressure provides the specific proposed changes
added language to the regulations Values to 10 CFR part 430, subpart B, appendix
codified in the CFR that would state that 5. Fan Time Delay Relays M, ‘‘Uniform Test Method for Measuring
any added procedures and calculations 6. Inverter-Driven Compressors the Energy Consumption of Central Air
for determining off mode energy 7. Addition of Calculation for Conditioners and Heat Pumps.’’
consumption and regional cooling mode Sensible Heat Ratio
performance being proposed in order to A. Framework Comment Summary and
8. Regional Rating Procedure
satisfy the relevant provisions of EISA 9. Address Testing Inconsistencies for DOE Responses
2007 need not be performed at this time Ductless Mini- and Multi-Splits A notation in the form ‘‘Southern
to determine compliance with the 10. Standby Power Consumption and Company Systems (SCS), No. 13 at p.
current energy conservation standards. Measurement 105’’ identifies a written comment DOE
has received and has included in the (SEER) and heating seasonal ductwork, and the furnace section when
docket of this rulemaking. This performance factor (HSPF) ratings the compressor and outdoor fan are
particular notation refers to a comment according to DOE requirements. In operating.
(1) by the Southern Company Systems obtaining these ratings, the ICM can The Joint Comment pertains to coil-
(SCS); (2) in document number 13 in the either test complete systems or use a only units, so discussion in the
docket of this rulemaking; and (3) DOE-approved alternative rating method following paragraphs is limited to those
appearing on page 105 of document (ARM) to calculate the rating. Approval products. This comment does not apply
number 13. of the ARM requires laboratory test to blower-coil units within the test
results for complete systems, but inputs procedure because there is no required
1. Test Procedure Schedule default assumption for the average air
to the ARM may or may not require
Several interested parties commented testing of just the indoor unit. (10 CFR handler. With regard to the NEEP
that DOE should consider the timeline 430.24) comment, the ratings for blower coil
necessary when modifying this test Although DOE does not have the units already reflect the performance of
procedure, and how the publication of authority to regulate a component of an the system’s particular indoor blower.
the test procedure coincides with air conditioner or heat pump system, it When blower coils are tested, the indoor
publication of the revised standard. does regulate the complete systems. The blower operates, and its performance is
(Southern Company Systems (SCS), No. system ratings published by ICMs must accounted for in the measured system
13 at p. 105; Air-Conditioning, Heating be obtained in accordance with DOE capacity and power consumption values
and Refrigeration Institute (AHRI), No. requirements summarized above. and ultimately in SEER and HSPF.
13 at p. 116; the American Council for A coil-only air conditioner or heat
an Energy Efficient Economy (ACEEE), 3. Defaults for Fan Power pump can be installed with a multitude
No. 13 at p. 117; Trane, No. 13 at p. 123) A Joint Comment stated that the of new and existing furnaces. The key
DOE is coordinating the publication present rating method does not credit considerations for matching a coil-only
timelines of both the test procedure and advanced air handler designs unit with a furnace are (1) the furnace
the amended standard. The test adequately because the default value is blower’s ability to provide the necessary
procedure NOPR will be open for public much lower than the average air handler air volume rate for the system; and (2)
comments. DOE will then address those energy use observed in the field. (Joint whether the outlet flange dimensions of
comments and publish a final test Comment, No. 25 at pp. 4, 6–7) the furnace are compatible with the
procedure rule. The associated standard According to the Joint Comment, a low inlet flanges on the indoor coil-only
will proceed concurrently with the test default value for fan power reduces the section of the air conditioner or heat
procedure rulemaking to maximize the incentive to improve fan efficiency. The pump. Another factor for field
time interval between the test procedure Joint Comment includes representatives application is whether the overall height
final rule and the revised energy from ACEEE, Appliance Standards (length) of the furnace and coil-only
standards final rule. Awareness Project (ASAP), the indoor section will fit into the available
California Energy Commission (CEC), building space.
2. Bench Testing of Third-Party Coils
the Northwest Power and Conservation The SEER and HSPF ratings represent
The Northeast Energy Efficiency Council (NPCC), and the Western the seasonal efficiencies of a complete,
Partnerships (NEEP) comment stated Cooling Efficiency Center (WCEC). functioning air conditioner or heat
that test procedures should require Proctor Engineering Group (Proctor) pump system. However, coil-only split
laboratory/bench testing for stated that the inside coil fan energy systems in laboratory testing are
independent coil manufacturers’ (ICM) needs to represent the median values incomplete because a hot-air furnace is
indoor units. (NEEP, No. 37 at p. 3) from actual installations, and also not part of the setup. Instead of the
NEEP includes representatives from the provided input on the methodology for furnace blower, the exhaust fan in the
Connecticut Office of Policy and evaluating fan power based on air test facility pulls air through the indoor
Management, New Hampshire Office of volume rate and equipment tonnage. unit of the coil-only system. The
Energy and Planning, Efficiency Maine, (Proctor, No. 38 at p. 1) exhaust fan is located downstream of
and Department of Energy Resources for NEEP stated that testing should be the test unit’s indoor section, outlet
the Commonwealth of Massachusetts. required for motors in actual operation instrumentation, and air volume
As amended, EPCA makes all and that the procedure should include measurement station. When the hot-air
residential central air conditioners and provisions for testing while air handler furnace and blower are removed from
heat pumps sold in the United States fans are running. (NEEP, No. 37 at p. 3) testing, the associated power
subject to specific testing, rating, Split-system ducted air conditioners consumption and measured cooling or
minimum efficiency, and labeling and heat pumps are primarily designed heating capacity are adjusted to account
requirements. These requirements apply for two different applications. These for the hypothetical hot-air furnace
to complete systems, including those applications depend on whether the air blower. The Joint Comment asserted
split systems where the outdoor conditioner or heat pump is installed that the test procedure default value is
components are provided by one with a hot-air furnace and share a too low and should require additional
manufacturer, while the indoor common duct system. Air conditioners real-time blower testing. Proctor
components are provided by a separate and heat pumps not designed for Engineering Group agreed and offered
manufacturer. The typical two- installation with a hot-air furnace must an alternative default equation based on
manufacturer split system is where the contain a blower to circulate air through data collected from actual installations.
indoor unit is provided by an ICM and the indoor coil and ductwork. Systems Given the variety of furnaces within
the outdoor unit is provided by an that include the integral or modular which a coil-only unit may be installed,
original equipment manufacturer indoor blower are typically referred to the range of blower sizes and associated
(OEM). Because the ICM wants to as blower-coil units. Coil-only units— efficiency of a complete installed system
advertise the performance of its indoor air conditioners and heat pumps are unknown. As a result, there are
coils with various OEM outdoor units, designed for installation with a hot-air several options for calculating the
the ICM is responsible for obtaining the furnace—rely on the furnace blower to assumed power and heat contributions
system seasonal energy efficiency ratio circulate air through the indoor coil, for the hypothetical hot-air furnace
blower. To obtain a SEER (and for heat and HSPF for coil-only air conditioners installed and configured in accordance
pumps, an HSPF) rating for each coil- and heat pumps. with the manufacturer’s instructions.
only split system, the hot-air furnace The DOE test procedure requires that
4. Changes to External Static Pressure a minimum external static pressure be
blower receives a default value.
Values equaled or exceeded during the wet-coil
According to the DOE test procedure,
the hypothetical hot-air furnace blower A Joint Comment stated that the cooling mode test. If this requirement is
contribution is expressed in terms of current assumed inches of water column not met initially, the configuration of
power (watts) and heat (Btu/h) per unit (in wc) values are lower than those the indoor unit is incrementally
of air volume rate (in this case, 1,000 typically found in the field and changed (e.g., switched to the next
standard cubic feet per minute [scfm]). unrealistically deemphasize the highest speed tap), and the wet-coil test
Since it was issued in 1979, the DOE importance of fan efficiency as a part of is repeated until the measured external
test procedure for central air overall system effectiveness. (Joint static pressure meets or surpasses the
conditioners and heat pumps has used Comment, No. 25 at pp. 4, 6) The applicable DOE test procedure
the same default fan power and heat for discrepancy often leads to less airflow minimum value.
rating coil-only air conditioners and in a field application, which generally Since its issuance in 1980, the DOE
heat pumps: 365 watts per 1,000 scfm improves latent (at the expense of test procedure for central air
and 1,250 Btu/h per 1,000 scfm. These sensible) capacity. conditioners and heat pumps has used
default values result in the adjustment The Joint Utility Comment suggested the same set of minimum external static
range from approximately 220 watts that new test conditions for external pressure values (except for SDHV
(750 Btu/h) for a 1.5-ton unit to static pressure and default fan power systems): 0.10 in wc for systems with a
approximately 730 watts (2,500 Btu/h) should be consistent with current field rated cooling capacity less than or equal
for a 5-ton unit. research findings. (Joint Utility to 28,800 Btu/h, 0.15 in wc for 29,000
The default value does not indicate Comment, No. 30 at pp. 1, 21) The Joint to 42,500 Btu/h, and 0.20 in wc for
the efficiency of blowers in furnaces; it Utility Comment includes 43,000 to 64,500 Btu/h. The laboratory
simply provides a means of comparing representatives from Pacific Gas and static pressure measurement tries to
products on a complete system basis. Electric Company (PG&E), Southern account for the supply and return home
The long-standing default values California Edison, Sempra Energy or building duct system unit flow
represent a typical furnace blower while Utilities (Southern California Gas resistance.
not being overly conservative. Changing Company and San Diego Gas and Limited field testing reports and the
the default values would shift the SEER Electric Company; hereafter ‘‘Sempra’’), general decline in the quality of
and HSPF ratings, but the ranking Sacramento Municipal Utility District, installed duct systems (in part from the
among most comparably sized the Nevada Power Company, and Sierra proliferation of the flexible duct) would
equipment would change minimally, if Pacific Power. support an increase in the minimum
at all. DOE evaluated the worst-case DOE received a number of comments external static pressure. Efforts by
scenario: multiple units with the same requesting that the minimum external building trades and code compliance
SEER calculated using the existing fan static pressure levels be increased. communities to improve the quality of
power and heat defaults, but with (Florida Solar Energy Center (FSEC), No. installed duct systems would support
degradation coefficients (CD) varying 31 at p. 4; Sempra, No. 13 at p. 121; smaller increases in the minimum
from 0.01 and 0.25, and capacities SCS, No. 39 at p. 2) Additionally, statics prescribed in the DOE test
differing up to 10 percent. If the SEER Proctor Engineering Group (Proctor) procedure. More field data would be
calculation uses a higher default like provided a formula for estimating the helpful but would likely never be
500 watts per 1,000 scfm (1,700 Btu/h static pressure based on the rated cfm/ acquired to the level needed to provide
per 1,000 scfm), the new SEER ratings ton (Proctor, No. 38 at p. 2). a definitive basis for selecting new
would all decrease but lie within a Some split system and all single- minimums. The greater impact of higher
range that spans less than 0.20 points package system air conditioners and minimum external static pressures will
(on the SEER rating scale). The minimal heat pumps are sold with integral be on lowering the SEER and HSPF of
impact on the ranking lessens the need indoor blowers. Split systems with all units equally. Lacking a basis to
for better defaults. To determine integral indoor blowers (i.e., blower-coil propose new values or reference a
whether higher default values better units) may be designed for ducted or consensus standard where alternatives
represent actual installations, DOE must non-ducted installation. The integral to the current minimums are
address three questions: indoor blower may be located either established, DOE chose not to propose
• What data can accurately represent upstream (push-through configuration) an alternative to the existing minimum
the typical installation? or downstream (draw-through values as part of today’s NOPR.
• What coordination will ensure that configuration) of the indoor refrigerant-
blower coils and coil-only units are to-air heat coil. 5. Fan Time Delay Relays
evaluated on a common basis? To mimic a field installation, single- FSEC and SCS commented that the
• Should poor duct systems affect package and blower-coil split air fan time delay relays should be disabled
equipment ratings? conditioners and heat pumps are for the SEER test procedure. (FSEC, No.
DOE expects that addressing these laboratory tested with installed 31 at p. 3; SCS, No. 39 at p. 2)
questions will require additional data components to include the most Many air conditioners and heat
collection, analysis, and input from restrictive filter(s), supplementary pumps employ a fan-off delay feature on
interested parties. With minimal impact heating coils, and other equipment the indoor blower. This delay, which is
on altering the relative ranking among specified as part of the unit. The DOE usually active for both the cooling and
competing products combined with the test procedure allows testing of a ducted heating modes, is used to extract stored
need to answer the above questions, unit without an indoor air filter but energy from the indoor coil immediately
DOE chose not to propose alternative requires a compensatory increase of 0.08 after the compressor has cycled off. The
default values for the power and heat in wc for the minimum external static indoor blower typically continues to
contribution of the hypothetical furnace pressure requirement. Otherwise, the operate for 45 to 90 seconds after the
blower used when calculating the SEER test procedure requires that the unit be compressor cycles off.
The DOE test procedure seeks to combination with achievable p. 1) The Joint Utilities Comment stated
evaluate the performance of central air measurement uncertainty. Until more is that DOE should require that all units be
conditioners and heat pumps without known about the impact of changing certified and rated for SHR at 82 °F
making the process overly burdensome from the long-standing dry-coil tests to ambient db temperature. (Joint
or expensive. The test procedure a wet-coil cyclic test, DOE has Comment, No. 30 at pp. 1, 21) Proctor
includes optional cyclic tests used to tentatively decided not to modify this stated that the rating for humid climates
quantify the degradation in performance test procedure to convert to wet-coil should include information about what
from the system cycling (predominantly cyclic testing. portion of the capacity is latent.
in field installation) compared with (Proctor, No. 38 at p. 2)
6. Inverter-Driven Compressors DOE proposes including the
operating continuously (as in most
laboratory tests). During these cyclic Mitsubishi Electric and Electronics calculation for the SHR within the
tests, the fan-off delay feature is not USA, Inc. (MEUS) commented that new revised DOE test procedure. (10 CFR
disabled. The evaluation thus accounts systems incorporating inverter-driven part 430, subpart B, appendix M,
for an incremental increase in total compressor technology require a revised section 3.3c and proposed
delivered capacity at the expense of modification to the test procedure. section 4.5) The Federal Trade
increased electrical energy consumption (MEUS, No. 13 at p. 19) Commission (FTC) could then consider
in extending the indoor blower Since 1988, the DOE test procedure incorporating this information in labels
operation. has covered air conditioners and heat for these products.
Disabling the fan time delay from pumps with variable-speed
compressors, single indoor units, and 8. Regional Rating Procedure
central air conditioners and heat pumps
during the cooling season will prevent single outdoor units. The October 2007 DOE received some comments that
re-evaporation of moisture on the indoor final rule extended coverage to variable- were supportive and others that were
coil and in the condensation pan. speed multi-split systems. 72 FR 59906. neutral on the development of regional
Substantial re-evaporation can occur if Before DOE can offer a more substantive ratings. The Joint Comment noted that
the indoor blower continues for an evaluation of the comment, DOE will DOE already applies regional rating
extended period after compressor need specific examples, including methods in the current test procedure
shutoff. Because of this evaporative laboratory data, of how the test for residential central air conditioners
mechanism, continuous fan operation is procedure fails to capture the and heat pumps. (Joint Comment, No.
discouraged during the cooling season. performance characteristics of an air 25 at pp. 3–4) It further noted that
However, DOE is not aware of definitive conditioner or heat pump that uses adoption of regional rating methods
data that show significant re- ‘‘new inverter-driven compressor might allow DOE to set standards of
evaporation during short fan-off delays. technology.’’ comparable stringency, but using
Part of the data void is due to the different rating conditions. (Joint
7. Addition of Calculation for Sensible
challenge of measuring rapidly changing Comment, No. 25 at p. 8) Ice Energy
Heat Ratio
values (humidity and temperature) stated that the test protocol should be
during the relatively short fan-off delay The Joint Comment contended that comprehensive and should span
period. Because of this difficulty, the the latent heat removal capability of outdoor ambient conditions over the
cyclic cooling mode test, used in CAC equipment should be measured complete range of expected operating
establishing the SEER, is conducted at under typical operating conditions, as conditions. (Ice Energy, No. 33 at p. 3)
an indoor wet bulb (wb) temperature opposed to high temperature conditions, FSEC stated that DOE should develop
that results in a dry coil. This also and should be certified for all models new cooling season bin temperature
explains why this test cannot be used to sold in hot and humid climates. (Joint profiles using 2008 typical
address the concern about re- Comment, No. 25 at p. 4) FSEC meteorological year (TMY) data from the
evaporation. expressed similar views and suggested National Renewable Energy Laboratory
In a related comment, Proctor that the latent heat ratio should be (NREL). (FSEC, No. 31 at pp. 3–4) The
recommended conducting the cooling measured under different test National Rural Electric Cooperative
mode cyclic tests with the indoor conditions for single speed and multi- Association (NRECA) commented that
conditions set to the same values used speed equipment. (FSEC, No. 31 at p. 2) DOE should evaluate whether its test
for the steady-state tests, 80 degrees Ice Energy suggested that the procedures account for the vast
Fahrenheit (°F) dry bulb (db)/67 °F wb dehumidification capability of CAC differences in ambient humidity levels
(Proctor, No. 38 at p. 2). Proctor stated equipment under hot and humid in different regions. The air conditioner
that such a change to wet-coil cooling conditions be included in the standard, and heat pump standards should also
mode cyclic tests is well within the and any regional standard for the take into account the effects of humidity
reach of today’s measurement Southeast region should address this on different regional standards.
technologies. issue. (Ice Energy, No. 33 at p. 3) On the (NRECA, No. 35 at p. 1)
DOE needs additional information to other hand, the Edison Electric Institute A second Joint Comment (Joint
quantify the potential benefits of (EEI) wants dehumidification capability Comment 2) from the National
converting from dry-coil to wet-coil to be included in the standards for all Resources Defense Council, National
cyclic testing. DOE must evaluate any regions. (EEI, No. 20 at p. 4) SCS stated Consumer Law Center, Inc., and
potential benefits relative to any that for hot and humid climates, a Enterprise stated that DOE should
laboratory upgrades that would be higher dehumidification capacity strengthen the SEER test procedure to
needed to achieve acceptably accurate should be incorporated in the standard. provide a more robust measure of actual
and repeatable results across the (SCS, No. 13 at p. 42) SCS also stated performance in varying conditions in
industry, and the impact of changing the that any regional air conditioning different regions. (Joint Comment 2, No.
time required to run a cyclic test. DOE standard should provide for minimum 36 at p. 2) PG&E noted that DOE needs
seeks data and information that would dehumidification performance that to reevaluate test procedures to
aid efforts to quantify the relative should be measured at normal operating determine the performance of this
performance impact and associated conditions and not at a higher equipment in the various climate zones.
expense of laboratory upgrades in temperature like 95 °F. (SCS, No. 39 at (PG&E, No. 13 at p. 116) EEI suggested
that the test procedure be updated to revised sections 3.2.1 (table 3A), 3.2.2.1 evaporative-cooled equipment with
account for ambient conditions in hot- (table 4A), and 3.2.2 (table 5A)) These directly comparable SEER ratings; and
dry and hot-humid climates. (EEI, No. test procedure proposed changes will (3) a test protocol that seriously
20 at p. 3) Proctor commented that the complement efforts to evaluate the merit addresses installation and performance-
temperature bins used for the rating of a regional standard for a cooling- longevity issues. (WCEC, No. 41 at p. 2)
calculation are not representative of the dominated region with dry climate. DOE ACEEE stated that DOE could use an
hotter portions of the United States and believes that similar changes are not alternative rating route to deal with
provided data representative of specific needed for cooling-dominated States enhanced dehumidification products.
hot climates. Proctor also commented with humid climates. The current (ACEEE, No. 13 at p. 154)
that the ratings for dry climates should indoor side entering wet-bulb test Regarding installation and
be based only on the sensible capacities condition of 67 °F, fractional bin-hour performance longevity issues, DOE does
measured in the test, and suggested that distribution, and outdoor design not have the authority to implement
the sensible capacities and latent temperature sufficiently represent the new performance metrics for
capacities, as well as the appropriate conditions for a humid climate. characterizing such features at this time.
watt draws, be measured in the existing Calculation of the SHR from such Presently, the only metrics available for
115 °F test. Further, the results of that existing tests, however, is proposed in representing performance are SEER and
test should be used in conjunction with today’s NOPR to quantify the product’s HSPF. These are seasonal performance
any intermediate tests to establish the dehumidification capabilities. metrics and are not useful for
relationship between the energy Section 306(a) of EISA amended characterizing installation issues,
efficiency ratio (EER) and outdoor section 325(o) of EPCA to require that performance longevity, or quantifying
temperature. Proctor also suggested that regions defined for the purposes of performance at peak demand.
in defining regions, DOE start with regional standards are required to be DOE notes that while there may be
examination of the existing DOE climate composed of contiguous States. (42 value in defining a test procedure that
map (currently used in the DOE U.S.C. 6295(o)(6)(C)(i)) In addition, can provide consistent, comparable
Building Energy Codes Program), which individual States shall be placed only rating of alternative cooling systems,
defines dry and humid regions of the into a single region. (42 U.S.C. including evaporative cooling
United States. (Proctor, No. 38 at pp. 1, 6295(o)(6)(C)(iii)) DOE is proposing an technologies and technologies
2) SCS also commented that measuring alternative regional efficiency metric, a incorporating thermal storage, such
performance at 115 °F would allow the region-specific SEER (SEER–HD) for a expansion of the test procedure is
design of temperature bin profiles that four-State region consisting of Arizona, beyond the scope of this rulemaking.
better reflect the actual climate of the California, Nevada, and New Mexico. This rulemaking seeks to address
The proposed SEER–HD reflects changes mandated in EISA and
desert Southwest. SCS supports the
equipment performance in this region. otherwise improve upon coverage of
concept of a regional rating that reflects
DOE does not endorse the comparatively conventional air
actual weather conditions, stating that
recommendation to add testing at 115 °F conditioners and heat pumps.
for a ‘‘hot-dry’’ regional standard, setting
outdoor temperature. A linear fit of data Determining additions and changes
the performance rating at 115 °F would
collected from the cooling mode tests at needed to allow testing and rating of
be of great value to consumers and
82 °F and 95 °F can sufficiently estimate thermal storage technologies, for
would not put an unreasonable burden
capacity and power consumption at 105 example, is a formidable task, one that
on manufacturers. (SCS, No. 39 at p. 2)
°F, 110 °F, and even 115 °F. Interested requires significant investigation. Such
SCS stated, however, that it is neutral at
parties have not provided, and DOE has an investigation is difficult to pursue
this time on whether a hot-humid not identified, examples where a SEER until such equipment is readily
regional standard should be established, rating or the proposed region-specific available as a commercial product.
due to uncertainties about changes in SEER was statistically different as a
test procedures, future design options 9. Address Testing Inconsistencies for
result of being evaluated based on
manufacturers could use to reach higher Ductless Mini- and Multi-Splits
laboratory data at 115 °F as opposed to
efficiency, of the ability of local 95 °F. Two interested parties commented
jurisdictions to limit use of equipment In other related comments, ACEEE that there are inconsistencies within the
with poor dehumidification asked how DOE would capture and central air conditioning test procedure
performance, and changes in consumer evaluate the efficiency of continuous for mini- and multi-split systems.
repair versus replacement or substitute ventilation for regional standards, as it (MEUS, No. 13 at p. 21 and 22; Daikin,
behavior due to higher standards. (SCS, is provided and used in a reasonable No. 28 at p. 6)
No. 39 at pp. 2, 3, 4) fraction of houses. (ACEEE, No. 13 at p. The proposed changes to items 1
Regarding the comments that favor 138) Sempra indicated that the test through 3 of Appendix M, cover test
region-specific cooling mode protocols should be able to procedure changes addressing
performance evaluations, DOE proposes accommodate technologies other than inconsistencies for ductless mini- and
changes that will allow the calculation air-cooled expansion unitary multi-splits. In response to the
of a region-specific SEER. (10 CFR 430, equipment. Sempra also commented comments, DOE proposes three changes
subpart B, appendix M, proposed that DOE should consider using the time to the test procedure to address these
section 2.2e and revised sections 3.2.1, value of energy in the new test inconsistencies: (1) Modify the
3.2.2.1, 3.2.3, and 3.2.4) The calculation procedures. (Sempra, No. 13 at p. 121) definition of tested combination for
parameters that permit this proposed WCEC contended that certain changes multi-split systems. DOE proposes to
region-specific SEER are the fractional in the test procedures could result in use the term ‘‘nominal cooling capacity’’
bin hour distribution and the outdoor energy savings: (1) A 24-hour test within the definition of ‘‘tested
design temperature. DOE proposes protocol that can measure and combination’’ (proposed change to 10
modifying the indoor wet bulb characterize the energy and peak CFR 430, subpart A, section 430.2,
temperature as part of additional demand implications of control and Definitions, Tested Combination) and to
required and optional testing. (10 CFR thermal storage technologies; (2) a test simplify the requirements for multi-split
part 430, subpart B, appendix M, protocol that provides different types of systems with cooling capacities of
24,000 Btu/h or lower; (2) add an standby and off mode power need to be procedure. As part of this coverage,
alternative minimum static pressure better defined. (Joint Comment, No. 25 manufacturers are required to test each
requirement for use when testing ducted at p. 6; CFM Equipment Distributors, model of a multi-split outdoor unit with
multi-split systems (10 CFR 430, subpart No. 13 at p. 129; Lennox, No. 13 at pp. at least one set of non-ducted (and at
B, appendix M, proposed table 2); (3) 113, 134; Carrier, No. 13 at p. 113; the least one set of ducted, if applicable)
clarify within the test procedure that Unico System, No. 13 at p. 129; Trane, indoor units. DOE placed limits on the
optional testing may be conducted No. 13 at pp. 130, 131, 136; PG&E, No. set of indoor units selected to meet this
without forfeiting the use of default 13 at pp. 132, 137; General Electric, No. testing requirement for each multi-split
values (10 CFR 430, subpart B, appendix 13 at p. 135; EEI, No. 20 at p. 5; ASAP, outdoor unit. These limits are
M, proposed section 3.6.4d). No. 13 at p. 132) prescribed in 10 CFR 430.2 definition
DOE concurs with the commenters. for ‘‘tested combination.’’ During the
10. Standby Power Consumption and
The definitions of standby and off mode previous test procedure rulemaking,
Measurement
as provided in EPCA section 325(gg) DOE refined the ‘‘tested combination’’
Interested parties submitted were amended by section 310 of EISA definition from the version published in
comments refuting the need to revise and are purposely generic so that they the July 20, 2006 NOPR to the version
the test procedure to consider standby can apply to all covered products. (42 published in the October 2007 final
power consumption when EISA does U.S.C. 6295(gg)(1)(A)(iii), (42 U.S.C. rule. After implementing the new test
not explicitly call for its revision, and 6295(gg)(1)(A)(ii), respectively) EPCA procedures, manufacturers of multi-split
noting that standby power consumption section 325 allows DOE to redefine systems requested additional changes.
is already addressed in the standard. these definitions, including off mode, as In its May 27, 2008 letter to DOE, the
(AHRI, No. 13 at p. 105; Sempra, No. 13 part of this rulemaking. (42 U.S.C. Air-Conditioning, Heating, and
at p. 133; Energy Solutions, No. 13 at p. 6295(gg)(1)(B)) The proposed definition Refrigeration Institute (AHRI)
108; Emerson, No. 13 at p. 111) Some is as follows: recommended three changes to the
contended that the test procedure’s ‘‘tested combination’’ definition. First,
accounting of standby power The term ‘‘off mode’’ means:
(1) For air conditioners, all times during AHRI supported changing specific
consumption is adequate and does not the non-cooling season of an air conditioner. references to ‘‘capacity’’ and ‘‘nominal
require modification. (Trane, No. 16 at This mode includes the ‘‘shoulder seasons’’ capacity’’ to ‘‘nominal cooling capacity.’’
p. 3; Carrier Corporation (Carrier), No. between the cooling and heating seasons AHRI argued that ‘‘this correction is
18 at p. 1; ASAP, No. 13 at p. 114; when the unit provides no cooling to the necessary to clarify that the test
MEUS, No. 19 at p. 1; AHRI, No. 24 at building and the entire heating season, when procedures are based on the cooling
p. 2). Trane and Carrier representatives the unit is idle. The air conditioner is (rather than heating) capacity of the
both stated that the standby power assumed to be connected to its main power equipment and to recognize that the
consumption calculation is already source at all times during the off mode; and
(2) For heat pumps, all times during the nominal means the cooling capacity of
captured in the degradation coefficient, non-cooling and non-heating seasons of a the system at 95 °F ambient, 80/67 °F
CD calculation. (Trane, No. 16 at p. 3; heat pump. This mode includes the indoor conditions.’’
Carrier, No. 18 at p. 1) ‘‘shoulder seasons’’ between the cooling and Second, AHRI requested that the
SEER reflects all modes of climate heating seasons when the unit provides requirement preventing the use of an
control energy consumption that occur neither heating nor cooling to the building. indoor unit having a nominal cooling
during the cooling season, as HSPF does The heat pump is assumed to be connected capacity that exceeds 50 percent of the
for the heating season. SEER does not to its main power source at all times during nominal cooling capacity of the outdoor
capture the time that an air conditioner the off mode.
unit be waived for outdoor units with a
DOE requests comments on this proposed
could be energized but idle during the definition (10 CFR, subpart B, appendix M, nominal cooling capacity of 24,000 Btu/
non-cooling season. Similarly, the proposed section 1.48). h or lower. AHRI noted that it is not
current test procedure does not capture always possible to meet this
energy consumed by a heat pump B. Summary of the Test Procedure requirement, especially because of the
during the non-cooling and non-heating Revisions additional DOE requirement that the
seasons. These are the shoulder seasons Today’s proposed rule contains the nominal cooling capacities of the indoor
that occur between the cooling and following proposed changes to the test units, when summed, must fall between
heating seasons and can be quantified procedure in 10 CFR part 430, subpart 95 and 105 percent of the outdoor unit’s
by converting the cooling and heating B, appendix M. nominal capacity. AHRI gave the
load hours for any location into actual example of an outdoor unit rated for
hours. In each case, the actual site or 1. Modify the Definition of ‘‘Tested 20,000 Btu/h that is designed to be used
region-specific cooling and heating Combination’’ for Residential Multi- with indoor units having nominal
season hours always sum to less than Split Systems capacities of 9,000 and 12,000 Btu/h. In
8,760. To calculate annual energy DOE procedures require testing a this case, the only combination that
consumption or annual operating cost, complete system, not just its meets the 95 to 105 percent indoor-
all 8,760 hours of the year must be components. For multi-split systems, outdoor capacity criteria is where two
accounted for. Until now, these annual each model of outdoor unit may be indoor units are used, one having a
quantities have been based on energy installed with numerous indoor unit capacity of 12,000 Btu/h and one having
consumption of fewer than 8,760 hours. combinations. Systems may differ in the a capacity of 9,000 Btu/h. The current
The DOE test procedure must account number of connected indoor units, their definition for tested combination,
for the idle mode energy consumption physical type (e.g., wall-mounted versus however, does not allow this
of the air conditioner and heat pump ceiling cassette, ducted versus non- combination because the 12,000 Btu/h
during the shoulder seasons and the idle ducted), and individual capacities. indoor unit exceeds the 50 percent limit
mode energy consumption of an air As part of the October 2007 final rule, on the capacity of the indoor unit to the
conditioner during the heating season. multi-split units with rated cooling capacity of the outdoor unit.
Several interested parties commented capacities less than 65,000 Btu/h were AHRI’s final suggested change
that although the current standard does newly covered in the DOE central air pertains to multi-split systems with
address standby power consumption, conditioner and heat pump test nominal capacities greater than 150,000
Btu/h. The current limit of five indoor establish a different limit on the number up to 28,800 Btu/h, 0.15 in wc for units
units to complete the system is often of indoor units used when testing multi- between 29,000 and 42,500 Btu/h, and
insufficient for the required 95 to 105 split systems with nominal capacities 0.2 in wc for units 43,000 Btu/h and
percent match with the outdoor unit. As greater than 150,000 Btu/h because above. These minimums were adopted
AHRI stated in its letter, AHRI these systems are outside the scope of from industry standards that were in
recognizes that ‘‘this capacity is beyond this residential test procedure place when the test procedure was
the cooling capacity limit of 65,000 Btu/ rulemaking. developed and that have remained
h * * * but many manufacturers have unchanged.
2. Add Alternative Minimum External
been granted waivers in which this The majority of multi-split systems
Static Pressure Requirements for Testing
tested combination definition applies.’’ use non-ducted indoor units. In
Ducted Multi-Split Systems
DOE concurs with two of the three laboratory testing following the DOE test
changes AHRI requested. DOE proposes Since the inception of DOE central air procedure, these free discharge units are
to adopt the wording ‘‘nominal cooling conditioner and heat pump test tested with an ESP of 0 in wc. Multi-
capacity’’ within the definition of procedures, the majority of covered splits are also offered where one or more
‘‘tested combination.’’ (10 CFR 430.2) products have used a single indoor unit of the indoor units is ducted. Compared
DOE will also waive the restriction that designed to work with a multi-branch with conventional ducted units, indoor
no indoor unit shall have a nominal duct system to distribute air within a unit ducting for multi-splits is shorter
cooling capacity exceeding 50 percent of building. This system imposes an and used on the return or supply, or
the outdoor unit’s nominal cooling additional load (quantified as external both.
capacity for multi-split systems having static pressure (ESP)) on the indoor In its May 27, 2008 letter, AHRI stated
a nominal cooling capacity of 24,000 blower as it distributes and returns air that ‘‘many ductless manufacturers have
Btu/h or less. (10 CFR 430.2(2)(iii)) to and from the conditioned space. ‘ducted’ indoor units that are intended
Additionally, DOE proposes to modify When a system is laboratory tested for a minimum (less than a few feet) or
the definition for ‘‘tested combination’’ according to the DOE test procedure, no duct runs and as a result have a rated
to indicate that the allowed range for the airflow resistance imposed on the external static pressure capability of less
indoor to outdoor capacity percentages blower by external attachments is than 0.1 ESP and usually around 0.02
is 95 to 105 percent, inclusive. (10 CFR measured when the indoor blower and ESP.’’ AHRI recommended a mechanism
430.2(2)(ii) The current wording calls the laboratory’s airflow measurement and language for addressing this issue in
for the match to be ‘‘between’’ (i.e., not apparatus maintain the manufacturer- the DOE test procedure. Specifically,
‘‘including’’) these bounds. Especially specified air volume rate. To constitute AHRI suggested that DOE amend its test
with the above switch to using ‘‘nominal a valid setup for ducted indoor units, procedure by adding the following
cooling capacity,’’ specifying a set of this external resistance measurement footnote to Table 2 of Appendix M
indoor units that yields an indoor to must equal or exceed a value—the (shown as Table III.1 below): ‘‘If the
outdoor capacity percentage of either 95 minimum ESP expressed in wc— manufacturer’s rated external static
or 105 percent increases should be specified in the DOE test procedure. The pressure is less than 0.10 in wc (25
allowed. minimum ESP value depends on one of Pascals (Pa)), then the indoor unit
With regard to the third change three minimum rated cooling capacities should be tested at that rated external
requested by AHRI, DOE will not of the tested system: 0.1 in wc for units static pressure.’’
TABLE III.1—MINIMUM EXTERNAL STATIC PRESSURE FOR DUCTED SYSTEMS TESTED WITH AN INDOOR FAN INSTALLED *
Minimum External Resistance †
Rated cooling or heating capacity ** in wc
Btu/h
SDHV Systems †† All other systems
≤ 28,800 ................................................................................................................................... 1.10 0.10

29,000 to 42,500 ...................................................................................................................... 1.15 0.15
43,000 ≥ ................................................................................................................................... 1.20 0.20
* Source: Table 2 from 10 CFR 430, modified for today’s NOPR.
** For air conditioners and heat pumps, this is the value the manufacturer cites in published literature for the unit’s capacity when operated at
the A or A2 test conditions. For heating-only heat pumps, this is the value the manufacturer cites in published literature for the unit’s capacity
when operated at the H1 or H12 test conditions.
† For ducted units tested without an air filter installed, increase the applicable tabular value by 0.08 in wc.
†† See definition 1.35 to determine if equipment qualifies as an SDHV system. If a closed-loop air-enthalpy test apparatus is used on the indoor
side, limit the resistance to airflow on the inlet side of the indoor blower coil to a maximum of 0.1 in wc. Impose the balance of airflow resistance
on the outlet side of the indoor blower.
In the field, ducted multi-split One problem with the language AHRI external static pressure when testing a
systems are installed using lower proposed is that a manufacturer could conventional unit, allowing the
pressure duct systems than are typically choose an unrealistically low value for manufacturer to select the minimum
used to install a conventional ducted the rated external static pressure. when testing a ducted multi-split
central air conditioner or heat pump. Because this would likely be a systems would create an unjustifiable
Consequently, DOE recognizes that secondary concern (if not completely inconsistency.
ducted multi-split systems should not overlooked) when a system is selected, DOE considered three related factors
be subject to the same minimum ESP the manufacturer lacks an incentive to before formulating an alternative to the
requirements as conventional central choose a representative rating. AHRI proposal. First, the following
systems. Specifying appropriate Additionally, because the manufacturer approach appears in the Draft
minimums, however, is difficult. is not allowed to select the minimum International Standard (DIS) ballot of
ISO Standard 15402, ‘‘Multi-Split ducted multi-split systems, DOE 4. Allow a Wider Tolerance on Air
System Air Conditioners and Air-to-Air proposes applying this new set of Volume Rate To Yield More Repeatable
Heat Pumps: Testing and Rating for minimum external static pressures to Laboratory Setups
Performance.’’ ducted mini-splits or 1-to-1 systems A goal of the DOE test procedure is
This ESP shall be greater than the where the indoor air handler is a ducted specifying a consistent equipment
minimum value given in Table 1 but not furred down/ceiling-mounted unit. To configuration to obtain repeatable
greater than 80% of the maximum external limit the 1-to-1 products that qualify for laboratory test results. For example, the
static pressure specified by the manufacturer. the lower minimum static pressures, the indoor blower of a particular model
* * * If the maximum ESP of the unit is single indoor unit must not exceed
lower than the minimum ESP given in Table should be consistently set to the same
specified dimensions (e.g., no more than blower speed setting for a given test
1, then the airflow rate is lowered to achieve 11 in high and less than 24 in deep), the
an ESP equal to 80% of the maximum ESP configuration. More generally, the
indoor unit must use a single slab coil
of the manufacturer. In case this ESP is lower blower speed setting should be the same
than 25 Pa, the unit can be considered as a that is perpendicular to the flow stream,
when performing the same test on all
free delivery unit. and the system’s rated capacity must not
units of the same equipment model.
exceed 39,000 Btu/h.
Where the ISO approach ties the As part of the equipment setup
DOE requests comment from
tested minimum external static pressure requirements for most blower-coil units,
interested parties on the proposed lower
to a manufacturer published maximum external static pressure levels for certain the testing entity (e.g., manufacturer or
value while approximating the smallest equipment as described above and on third party) turns on both the indoor
indoor units as non-ducted, the two the proposed language for ensuring that unit blower and the test facility exhaust
other inputs suggest that the current test these levels are used only for testing the fan. The exhaust fan and/or an airflow
procedure requirements are manageable. intended products: ducted multi-splits, damper are adjusted until the
Specifically, manufacturers of single ducted mini-splits, and ducted furred manufacturer-specified indoor air
indoor blower coil units that use short down/ceiling mounted one-to-one units. volume rate is obtained. If the measured
ducts —sometimes referred to as ‘‘furred external static pressure equals or
down or ceiling mounted air handling 3. Clarify That Optional Tests May Be exceeds the test procedure specified
units’’—have never requested that DOE Conducted Without Forfeiting Use of minimum value, testing proceeds
lower the minimum static pressure the Default Value(s) without adjustment to the indoor unit
requirements. Further, DOE has In the DOE test procedure, the configuration.
received no evidence showing that any manufacturer has two options for If the measured external static
multi-split indoor unit could not obtaining a required parameter within pressure is below the DOE minimum,
achieve the applicable DOE minimum the SEER or HSPF calculation the setup requires additional effort. The
external static pressure when delivering algorithm: (1) Run one or two additional first step is to reduce the air volume rate
its air volume rate. tests to obtain the necessary data; or (2) until the measured external static
DOE proposes an approach that does use a ‘‘default value,’’ which may be pressure equals the DOE minimum. As
not require publication of the maximum fixed or derived from an approximating currently specified in the test
external static pressure. For the systems equation. For certain frost accumulation procedure, if the measured external
meeting the definition of ‘‘multiple-split tests, the DOE test procedure gives the static pressure does not equal the DOE
air conditioner and heat pumps’’ in the manufacturer the option of conducting minimum by the time the air volume
test procedure (10 CFR part 430, subpart the test or using default equations to rate has been reduced to 95 percent of
B, appendix M, section 1.30), DOE determine the pump’s power the rated value, then the indoor unit
proposes a new set of minimum external consumption and space heating capacity blower is turned off, and the indoor
static pressures. The proposed at 35 °F outdoor temperature and at the unit’s setup is adjusted to the next
minimums will be listed in table 2 of designated compressor capacity. The highest speed setting.
appendix M of the test procedure, along test procedure is not clear whether The above setup procedure will
with the current values for SDHV and defaults are forfeited if the manufacturer typically result in the indoor blower-
all other systems. The proposed values conducts the optional laboratory test. coil set to the same speed setting for
are 0.03 in wc for units through 28,800 This matter is clarified here. testing all units of the same model. In
Btu/h, 0.05 in wc for units between As stated in the DOE test procedure essence, the procedure handles the
29,000 and 42,500 Btu/h, and 0.07 in wc (10 CFR part 430, subpart B, appendix inherent variability in the external static
for units 43,000 Btu/h and above. The M, sections 3.2.1, 3.2.2.1, and 3.2.3), the pressure and air volume rate produced
proposed minimums seek to capture the manufacturer may run the optional and measured for multiple equipment
relative differences between a test(s) for determining a cyclic setups. This variability is due to
conventional central ducted system and degradation coefficient but still use the manufacturing tolerances and lab
one with the shorter ducts of a typical default if it is lower than the tested measurement uncertainties.
multi-split system installation. Because value. DOE proposes allowing In its May 27, 2008 letter, AHRI
ducts add resistance, DOE will not manufacturers to run the optional requested that the 5-percent tolerance
adopt the ISO approach of testing the test(s), with the understanding that they on air volume rate be increased to 10
smallest systems at zero static pressure. can still use the default value if it is percent. In addition, AHRI
For multi-split systems, the applicable more favorable for optional frost recommended that the language for the
minimum external static pressure will accumulation tests. Specifically, the indoor blower coil setup procedure be
be assigned based on the nominal/rated manufacturer may use the power refined to recognize that some
cooling capacity of the outdoor unit. A consumption and heating capacity incremental setting changes may affect
static pressure equal to or higher that values derived from conducting the more than fan speed. AHRI gives the
this minimum will be achieved in each optional frost accumulation test or the example that ‘‘some speed tap settings
outlet duct upstream of the point where values calculated using the default may equate to a specific duration of fan
they connect to the common plenum equations, whichever set contributes to delay whereas other settings may
that leads to the test room’s airflow a higher Region IV HSPF based on the translate to no fan delay.’’ To address
measuring apparatus. In addition to minimum design heating requirement. this issue, AHRI recommends that DOE
make incremental changes to the indoor 5. Change the Magnitude of the Test when using and electronic pressure
blower setting among settings that Operating Tolerance Specified for the transducer instead of a liquid
provide similar operating features. External Resistance to Airflow and the manometer. Matching or remaining
AHRI offers two reasons in its May 27, Nozzle Pressure Drop within the proposed tolerances, by
2008 letter for supporting a greater The DOE test procedure specifies both comparison, was far more achievable.
At this stage, DOE proposes amended
tolerance on air volume rate during the test operating and condition tolerances.
values for the two tolerances rather than
initial setup process: The expanding use Test operating tolerances indicate the
their complete elimination because they
of constant torque motors for central air maximum range that a parameter may
still help assure data is taken during a
conditioners and heat pumps blower vary during the data collection interval.
period of relatively steady operation.
coils, and the effect of barometric For any given test, operating tolerances
Additional steps, however, may be
pressure. AHRI states that ‘‘for a given are specified for a few different
warranted. For example, a prescribed
speed tap, the air volume rate achieved parameters. For each parameter, the
algorithm for identifying outliers and/or
using a constant torque motor is difference between the highest and establishing minimum intervals over
comparatively more variable; also the lowest instantaneous measurement for which all instantaneous measurements
change in power draw as a function of the data collection interval must not are averaged (e.g., minutely averages)
an incremental change in the speed tap exceed the specified operating tolerance may also be needed to strike the
is also comparatively greater so the in order to constitute a valid test. necessary balance between defining test
impact on efficiency will be more The test operating tolerance for tolerances that promote repeatable test
pronounced.’’ Barometric pressure external resistance to airflow is 0.05 in results while not extending test times.
affects air density and the water vapor wc. The test operating tolerance for Another option may be to introduce a
content for a given db/wb combination. nozzle pressure drop is 2.0 percent. mechanical means for damping the high
Thus, barometric pressure affects Both tolerances, which apply for all frequency pressure fluctuations that are
capacity through both the air volume cooling and heating tests were included fed to the electronic pressure transducer
rate and the enthalpy change of the air. in industry standards (e.g., ASHRAE to mimic a liquid manometer. Such
As referenced in the AHRI letter, Standard 37) that pre-date the first damping would be acceptable because
barometric pressure effects are publication of the DOE central air the measurements would still reveal
especially important, as most conditioner and heat pump test whether the flow was steady or trending
manufacturers’ in-house testing is procedure. The DOE test procedure higher or lower.
conducted at a lower elevation and adopted the two tolerances at its DOE seeks comments from interested
typically higher barometric pressure inception and has not changed it. For parties about the proposal to increase
than at the industry’s primary current industry standards, the the test operating tolerance for the
independent certification testing tolerances appear in the 2009 version of external resistance to airflow from 0.05
facility. ASHRAE Standard 37. to 0.12 in wc and increase the test
The two test operating tolerances are operating tolerance for the nozzle
In response to AHRI’s May 27, 2008 often exceeded when an electronic
letter, DOE proposes to increase the pressure drop from 2.0 percent to 8.0
pressure transducer is used to measure percent. In addition, comments on
tolerance on air volume rate from 5 to differential pressure instantaneously.
10 percent. In addition, DOE proposes alternative or additional steps to assure
The likelihood of exceeding the the capacity and electrical power data
to adopt AHRI’s recommendation to tolerance increases with higher
refine the indoor blower coil setup are collected over a 30-minute period of
sampling rates and when testing indoor consistent operation are encouraged.
procedure to recognize that some blowers whose controls actively regulate
incremental changes to the setting may operation of the blower’s motor. One 6. Modify Third-Party Testing
affect more than the fan speed. DOE example is a blower with a variable- Requirements When Charging the Test
used computer modeling and laboratory speed motor designed to maintain the Unit
data to determine that a 10 percent air volume rate regardless of the airflow DOE proposes to revise section 2.2.5,
difference in air volume rate will cause resistance. In contrast, these test ‘‘Additional refrigerant charging
total capacity to decrease between 1.3 to operating tolerances are usually requirements,’’ of the test procedure.
2 percent, while having the total system satisfied if the differential pressures are Most of the proposed revisions originate
power consumption fall between 1 to measured using liquid manometers. The from the requirements listed in section
1.8 percent for a minimally compliant fluid provides mechanical damping that 9.8.1.1 of the 2008 ARI General
system. Because capacity and power tends to stabilize readings. Operations Manual for AHRI
impacts are similar, the EER and SEER DOE proposes to loosen the existing Certification Programs. DOE adopted the
impacts are less. SEER is projected to tolerances from 0.05 to 0.12 in wc for current language in section 2.2.5 of the
decrease between 0.2 and 0.4 percent. the test operating tolerance assigned to DOE test procedure in the October 2005
Thus, this proposed change has the the external resistance to airflow and final rule. The section 2.2.5 text covers
potential to affect the measured capacity from 2.0 percent to 8.0 percent for the details not addressed in the test
such that it may make it more difficult nozzle pressure drop tolerance because procedure prior to the October 2005
to meet the industry certification the pressure fluctuations are real (10 rule, such as charging instructions that
program’s 95 percent capacity tolerance. CFR, subpart B, appendix M, revised differ for field installations versus
The impact on the DOE regulated
tables 7, 8, 13, 14 and 15). The proposed laboratory testing and the procedure for
descriptor of SEER, however, is well changes in the magnitude of the manufacturers and third-party testing
within the measurement uncertainty, tolerances are based on limited data entities to resolve questions on charging
even for the limiting case of a 10- obtained from laboratory testing of a a particular system. In the months
percent departure. variable-speed, constant air-volume-rate following publication of that rule, AHRI
DOE requests data and comments blower using electronic pressure members reconsidered refrigerant
from interested parties on the impact of transducers with a 5-second sampling charging, mainly within the context of
the change from 5 to 10 percent rate. This data indicated that the current implementing its third-party
tolerance on air volume rate. tolerances could rarely be achieved certification program. During the August
23, 2006 public meeting, Rheem interaction with the manufacturer is DOE proposes to address the issue in
Manufacturing Company shared AHRI’s allowed. section 2.2 and, as a result, existing
view of key shortcomings. These The AHRI Certification Program and section 2.2.5 language on this topic is
include provisions in section 2.2.5 the DOE test procedure focus on proposed for deletion.
regarding available options when a unit different aspects of the rating process.
The AHRI program conducts 8. When Determining the Cyclic
is charged and tested by a third party. Degradation Coefficient CD, Correct the
These provisions failed to disallow verification testing of full production of
randomly sampled units taken from the Indoor-Side Temperature Sensors Used
charge manipulation during the testing During the Cyclic Test to Align With the
process (e.g., different charging criteria manufacturer’s inventory. By
comparison, the DOE test procedure is Temperature Sensors Used During the
for the cooling mode tests versus the Companion Steady-State Test, If
heating mode tests). typically conducted before a new model
of air conditioner or heat pump is Applicable
AHRI provided language from the
current version of the AHRI General introduced into the market. Therefore, In the DOE test procedure, the results
Operations Manual so that all or part of testing is usually performed on first from two optional dry-coil cooling mode
it may be considered for incorporation production or pre-production units, tests—one steady-state, one cyclic—
into the DOE test procedure. The each of which meets the requirement in provide the inputs to calculate cooling
specific AHRI text of interest is as 10 CFR 430.24 that testing be done on mode cyclic degradation coefficient(s),
follows: ‘‘units which are production units, or CcD. For the heating mode, the results
are representative of production units.’’ from one of the required steady-state
9.8.1.1 Test Sample Refrigerant Charge.
When testing pre-production units, the tests plus the results from an optional
All test samples will be charged in
accordance with the following instructions installation instructions are not cyclic test are used to calculate the
and those provided in the manufacturers’ packaged with the unit or perhaps not heating mode cyclic degradation
Installation and Operational (I/O) Manuals. even finalized. DOE proposes adding coefficient, ChD. In all cases, the two
Determine refrigerant charge at the language on how to handle such cases. tests for calculating a cyclic degradation
Standard Rating Condition in accordance (appendix M, revised section 2.2) Some coefficient are conducted consecutively,
with instructions from I/O Manual. For a of the restrictions on interactions with the steady-state test conducted
given specified range for superheat, sub- between third-party testing laboratories first.
cooling, or refrigerant pressure, the average of and manufacturers, imposed as part of Both the steady-state (10 CFR part
the range shall be used to determine the 430, subpart B, appendix M, sections 3.4
the AHRI Certification Program, do not
refrigerant charge. If multiple instructions are and 3.7) and cyclic (10 CFR part 430,
given, the manufacturer will be asked to sign apply to the DOE test procedure. One
example is AHRI’s General Operations subpart B, appendix M, sections 3.5 and
off on the preferred method.
The testing laboratory will then add or Manual requirement that ‘‘only 3.8) CD tests require calculating the
subtract the correct amount of refrigerant to laboratory personnel shall install test change in the db temperature on the
achieve the pre-determined superheat, sub- units.’’ The policy is useful to AHRI indoor side. To complete these
cooling, or refrigerant pressure. This single because certification testing checks DOE measurements, the laboratory test setup
charge will then be used to conduct all ratings. AHRI does not want individual includes redundant sets of temperature
cooling cycle and heating cycle tests. manufacturers to slow the testing sensors and associated instrumentation.
Once the correct refrigerant charge is process or reveal information about a In many cases, one set of temperature
determined, the test will run until sensors provides the primary
competitor. On the other hand, DOE
completion without interruption. measurement of the change in db
will not prohibit a manufacturer from
DOE proposes to adopt selected interacting with a third-party testing temperature for all steady-state tests,
elements of the above AHRI procedures. laboratory if the latter is contracted to while the second set provides the same
(10 CFR part 430, subpart B, appendix perform work similar to in-house primary measurement for all transient
M, section 2.2.5) The proposed changes manufacturers. (10 CFR part 430, tests, including the cyclic CD test. Using
promote consistency with current AHRI subpart B, appendix M, revised section two sets of temperature sensors allows
certification practices, including 2.2a) In the event of a DOE enforcement highly accurate measurements during
explicitly disallowing charge action, DOE places no restrictions on the steady-state test; comparatively less
manipulation once the initial charging manufacturer involvement as long as the accurate but necessarily faster-
procedure is completed, while differing test unit installation and laboratory responding measurements are achieved
on the approach of addressing cases testing are conducted in complete during the transient tests. The DOE test
where a manufacturer either provides compliance with all other requirements procedure refers to ASHRAE Standard
no instructions or provides more than in the DOE test procedure. The highest 41.1–1986 (RA 2001) for
one set of charging instructions. In order of these other requirements is to recommendations and requirements on
particular, DOE chose not to implement install the unit according ‘‘the making these temperature
a ‘‘sign off’’ option as AHRI uses because manufacturer’s installation measurements.
the proposed approach of specifically instructions,’’ as stated in section 8.2 of Cyclic degradation coefficients are
addressing the setup procedure in these ASHRAE Standard 37, where the first used to obtain a relationship between
two special cases is effective and less source for those instructions is the part-load factor (PLF) and the percent
burdensome. published literature that comes on-time of the unit. PLF is a ratio of the
packaged with the unit. cyclic to the steady-state EER. The
7. Clarify Unit Testing Installation
This second issue on the allowed consecutive CD tests are used to obtain
Instruction and Address Manufacturer interactions between third-party testing one point on the PLF versus percent on-
and Third-Party Testing Laboratory laboratory and the manufacturer was time plot. Because the results of the
Interactions addressed in a previous rulemaking (70 consecutive CD tests define a ratio, the
DOE proposes to add language to FR 59122) but only as it pertained to the preferred testing approach is to limit
section 2.2 of the test procedure. The specific installation step of refrigerant differences between the two tests. Using
additions seek to clarify installation charging (section 2.2.5 of the test one set of instrumentation to measure
instructions and, when third-party procedure). Because the interaction the change in the db air temperature
testing is conducted, to clarify that applies to the entire installation process, entering and leaving the indoor unit
during the steady-state CD test and a minutes, the third from 2 to 8 minutes, the long-standing minimum sampling
different set for the companion cyclic and so on. rate for all steady-state tests from 10 to
CD test is a source of potential bias. Upper and lower limits are proposed 5 minutes. The 10-minute sampling
To avoid conflict, DOE may require for FCD to provide a uniform basis as to interval rate allows time for some
that the same temperature measurement how much the two temperature measurements to be hand-recorded.
instrumentation be used for both measurements may deviate. The Improved test quality and results,
consecutive CD tests. The Standards proposed allowable range of FCD is 0.94 advances in electronic instrumentation,
Project Committee revising ASHRAE to 1.06. Laboratories that sample at a and the low cost of computer-based
Standard 116, ‘‘Methods of Testing for rate of every minute or less can evaluate versus manual recording justify the
Rating Seasonal Efficiency of Unitary the first FCD as soon as 6 minutes after minimum sampling rate change.
Air Conditioners and Heat Pumps,’’ the start of the normal 30-minute data DOE seeks comments from interested
considered this alternative but chose to collection period. If this first or any parties on the introduction and
make it a recommendation, not a subsequent value of FCD is outside the calculation of the cyclic degradation
requirement (see clause 5.1.4 of proposed application range of 0.94 to correlation factor. DOE also seeks
ASHRAE Standard 116–1995R, ‘‘Method 1.06, then the testing laboratory can comments on the change in sampling
of Testing for Rating Seasonal Efficiency make a decision to abort the test in rate from 10 to 5 minutes.
of Unitary Air Conditioners and Heat advance of completing the 30-minute
9. Clarify Inputs for the Demand Defrost
Pumps,’’ First Public Review draft). A data collection period. By comparison,
Credit Equation
second option is to correlate the if a 5-minute sample rate is used, FCD
instrumentation used for the primary falling within the allowed range will The demand defrost credit (Fdef) is a
measurement of the temperature remain unknown until the 30-minute direct multiplier within the HSPF
difference of the cyclic CD test to that data collection period is completed. In calculation Eq. 4.2–1 in the DOE test
used for the primary measurement this case, up to 24 minutes of laboratory procedure. The factor provides nominal
during the steady-state CD test. Some testing time may be lost from a longer credit for heat pumps with a demand
industry members have implemented wait to evaluate compliance. defrost control system. Systems that
this correlation approach and found that If the value of FCD at the conclusion meet DOE requirements in test
it improves repeatability. of the 30-minute period (saved FCD) falls procedure definition 1.21, ‘‘demand
DOE proposes to require a correlation outside the range of 1.0 ± 0.6, then the defrost control system,’’ qualify for this
step for testing laboratories that use test sequence must be terminated, and credit. The multiplier has a value
different instrumentation to measure the steps taken to improve the agreement between 1.00 and 1.03, which is a 0 to
change in the db temperature of the air between the sets SS and CYC 3 percent increase in the HSPF rating.
entering and leaving the indoor unit instrumentation. Calibration of one or The credit is evaluated using the
during the steady-state CD test versus both sets of instrumentation in following equation from section 3.9.2 of
the cyclic CD test. This correlation step accordance with ASHRAE Standard the DOE test procedure:
is conducted during the steady-state CD 41.1 may be necessary. Once the
test. During the test, both sets of remedial steps are complete, the steady- ⎡ Δτ def − 1.5 ⎤
state CD test shall be repeated. For cases Fdef = 1 + 0.03 × ⎢1 − ⎥
⎣ Δτ max − 1.5 ⎦
instrumentation—those sensors
providing the primary measurement within the accepted range, the saved
during the steady-state (set SS) and FCD shall thereafter be used during the Where:
during the cyclic (set CYC) tests— cyclic CD test to adjust the indoor-side Δtdef = time between defrost terminations (in
measure the indoor-side air db temperature difference or a time- hours) or 1.5, whichever is greater, and
temperature difference. For both sets of integrated value of the same determined Δtmax = maximum time between defrosts as
instrumentation, measurements made at using the set CYC instrumentation. For allowed by the controls (in hours) or 12,
example, with respect to section 3.5 of whichever is less.
equal intervals that span 5 minutes or
less determine the temperature Appendix M, the equation for the The demand defrost credit was
difference. Once the 30-minute data integrated, indoor-side air temperature incorporated into the test procedure
collection period begins for the steady- difference will be written as follows: during the rulemaking completed in
state CD test, an average temperature March 1988 and has remained
difference is calculated based on the unchanged. 53 FR 8319. DOE
sets SS and CYC instrumentation after a mistakenly overlooked inputs to this
minimum of 7 data samples and 6 The value of FCD shall be used only equation during the most recent test
minutes or more. The average to adjust the set CYC temperature procedure final rulemaking, in which
temperature differences are then used to difference measurement from the cyclic DOE shortened the maximum duration
calculate the CD correlation factor, FCD: CD test that immediately follows the of all frost accumulation tests from 12
steady-state CD test that yields the to 6 hours. DOE has since considered
FCD = ΔT(Set SS) ΔT(Set CYC) correlation factor. The FCD determined two options for calculating the credit:
and applied for one set of consecutive (1) Update the evaluation of Δtmax to
An updated FCD value shall be CD tests shall not be used to adjust the read ‘‘maximum time between defrosts
EP02JN10.239</MATH>
recalculated every minute or after each set CYC temperature difference as allowed by the controls (in hours) or
data sample, whichever occurs later. In measured during a second cyclic CD test 6 hours, whichever is less;’’ and
addition, each recalculated ratio shall be or during a frost accumulation test. (2) reinforce that the current form of the
based on the same number of data DOE proposes to decrease the equation still applies and, when a
samples and same elapsed time as used minimum sampling rate of the db defrost cycle is not completed before the
EP02JN10.303</GPH>
for the first FCD. For the example case temperature difference from the current maximum time, assign Δtdef the value of
of a sampling rate of 1 minute or less, value of every 10 minutes to every 5 6 hours. DOE proposes to adopt this
the first FCD shall be based on data minutes to obtain a more representative second option in today’s notice.
collected from elapsed time of 0 to 6 value of FCD. As an extension of this As discussed in the October 2007
minutes, the second from 1 to 7 modification, DOE proposes to change final rule, the change from a maximum
EP02JN10.304</GPH>
test duration of 12 to 6 hours rarely cooling is sensible and 25 percent is where applicable, altering the blower’s
affected testing; when it did, there was latent. speed (if equipped with a multi-stage or
a negligible impact on the calculation of The DOE test procedure considers variable-speed motor). The second and
the average heating capacity and power total building cooling loads and total broader means of affecting power
consumption at a 35 °F outdoor cooling equipment capacities as part of consumption occurs in systems that use
temperature. The main reason for the SEER calculation. The cooling load a single outdoor unit equipped with a
changing the maximum limit to 6 hours and capacity are not divided into their two-stage compressor or in systems
was to reduce the test burden when frost sensible and latent components. Based consisting of two outdoor units, each
did not build on the outdoor coil. The on historical data, equipment SHRs
having single-speed compressors.
frost accumulation tests at low-capacity have remained relatively unchanged as
for two-capacity heat pumps and at the equipment SEER ratings have increased. DOE proposes modifications to cover
intermediate compressor speed for In addition, cooling equipment has the testing and rating of systems using
variable-speed units are the two leading historically provided a reasonable a multi-blower indoor unit. These
cases where this revision may help match to the sensible and latent loads of systems will be treated as if all zones
reduce that burden. Since the institution the building or residence. However, depend on outdoor temperature such
of this change, DOE has not received better insulation of homes and small that they respond to the same load
any comments or information about the commercial buildings has helped reduce profile as a single-zone system. DOE test
effects on heating capacity or power. sensible building loads. Particularly in procedure algorithms for covering two-
Shortening the maximum duration of more humid climates, this reduction in capacity units and systems having a
the frost accumulation test affects heat the sensible building load can make the single-speed compressor with a
pumps that would otherwise conduct a latent building load more prominent. variable-air-volume rate indoor blower
defrost after 6 but before 12 hours in SHR differences among equipment would provide the basis for the
two ways. First, as recognized during having approximately the same SEER algorithms that address systems with a
the October 2007 final rule process, have always existed. For example, 2001 multi-blower indoor unit (10 CFR 430,
such heat pumps benefit slightly from Amrane, Hourahan, and Potts data
subpart B, appendix M, revised sections
not having a defrost cycle factored into reported in the January 2003 ASHRAE
2.2.3, 2.4.1, 3.1.4.1.1, 3.1.4.2, 3.1.4.4.2,
their average heating capacity Journal (pp. 28–31) show SHR values
that vary by at least 0.10 for a given 3.1.4.5, 3.2.2, 3.2.2.1, and 3.6.2;
calculation. Second, they earn a higher
SEER value. When humidity control is proposed sections 3.2.6, 3.6.7, 4.1.5, and
demand defrost credit than they would
have earned previously. As a worst case a concern, consumers and their 4.2.7; and revised tables 4 and 10).
(e.g., unit’s demand defrost controls contractors may wish to know the SHRs On August 28, 2008, DOE published
actuate at 11.999 hours while the unit’s of different units to make a more a decision and order granting a waiver
maximum duration is 12 hours or more), informed decision. from the DOE Residential Central Air
the approximated demand defrost credit The measurements required to Conditioner and Heat Pump Test
is now 1.017 compared to the ‘‘true’’ calculate the SHR from a DOE wet-coil Procedure for a line of multi-blower
value of 1.000. cooling mode test are taken as part of indoor units that may be combined with
In summary, the proposed rule the DOE test procedure. In fact, one single-speed heat pump outdoor
includes additional language clarifying manufacturers and independent testing unit, one two-capacity heat pump
that manufacturers must assign Δtdef the laboratories routinely determine SHR. outdoor unit, or two separate single-
value of 6 hours if this limit is reached DOE proposes to add the SHR speed heat pump outdoor units. 73 FR
during a frost accumulation test and the calculation to its test procedure to 50787–50797. For the two separate
heat pump has not completed a defrost endorse the calculation and its single-speed outdoor units, the chosen
cycle. A sentence is also added to continued use explicitly. (10 CFR part indoor coil contains two independent
indicate that the manufacturer must 430, subpart B, appendix M, revised refrigeration circuits, each fed by one of
provide the value of Δtmax. section 3.3c and proposed section 4.5)
DOE seeks comments from interested the outdoor units.
parties on this proposal for calculating 11. Incorporate Changes to Cover The above-referenced waiver covers
the demand defrost credit (Fdef) for cases Testing and Rating of Ducted Systems products that use two to eight indoor
where the Frost Accumulation Test is Having More Than One Indoor Blower blowers with a single- or dual-circuit
terminated because the heat pump does The majority of residential central air indoor coil. To simplify the testing and
not initiate a defrost within the conditioners and heat pumps employ a rating algorithm, DOE structured the
maximum allowed 6-hour heating single blower and a single refrigerant-to- waiver so that each system was
interval. air coil. Typical multi- and some mini- evaluated with all and with half of the
splits use more than one indoor unit, indoor blowers operating. DOE did not
10. Add Calculations for Sensible Heat with the indoor units using one blower
Ratio consider any other potential blower
and one coil. However, a newer type of combinations. For systems offering
SHR is a parameter that indicates the residential central system that uses compressor modulation, a high-stage
relative contributions of the air more indoor blowers than indoor coils compressor operation was evaluated
conditioner’s or heat pump’s cooling does not follow this one-to-one blower- only when all blowers were on, and the
output that reduces the db temperature to-coil ratio. low-stage was evaluated with half the
of the air (i.e., sensible cooling) to the The multi-blower design facilitates
blowers on.
cooling output that reduces the moisture zoning when the system responds to
content in the air (i.e., latent cooling). more than one thermostat. Associated DOE proposes to amend the test
The parameter is calculated by dividing with the zoning feature are capacity procedure to allow the coverage of
the sensible cooling capacity by the total modulation and variations in electrical systems that use a multi-blower indoor
cooling capacity. Total cooling capacity power consumption. The first and more unit to address the same type of
is the sum of the sensible and latent limited means of affecting capacity and equipment covered by the test
cooling capacities. For example, an SHR power use is controlling the number of procedure waiver granted to Cascade
of 0.75 indicates that 75 percent of the indoor blowers that are turned on and, Group, LLC.
12. Add Changes To Cover Triple- third or boosted compression stage (10 components of coil-only systems be
Capacity, Northern Heat Pumps CFR part 430, subpart B, appendix M, measured and included in the
On February 5, 2010, DOE granted proposed section 3.6.6). applicable rating descriptors. DOE
Hallowell International a waiver from DOE is proposing equations for anticipates needing to specify a VA
the DOE test procedure on how to test calculating the capacity and electrical rating for the transformer used for
power consumption of the heat pump as laboratory testing, while requiring that
and rate its line of boosted compression
a function of the outdoor temperature the input voltage be the same as that
heat pumps. (24 FR 6014–6018) These
when operating at its highest stage of provided to the outdoor unit (e.g.,
heat pumps offer three stages of
compressor capacity. As part of the 230 V).
compressor capacity when heating, with
proposal, the heating building load used An indoor wall thermostat is not
the third stage being designed to
in the HSPF calculation, would also be typically used for laboratory testing of a
provide greater heating capacity at the
based on the capacity measured during central air conditioner or heat pump.
lowest outdoor temperatures. The
the H1 test condition (47 °F db/43 °F wb For this rulemaking, DOE considered
approved waiver contained additional
outdoor temperatures). The compressor but decided against assigning a default
laboratory tests and calculations steps
would operate at the same speed or power value to account for the absence
that were specific to obtaining an HSPF
stage as in the (A2) cooling mode test at of the wall thermostat. Some
rating for the Hallowell heat pumps. No 95 °F outdoor db. The HSPF calculation thermostats use no power or are battery
changes to the DOE test procedure were algorithm would be an extension of the powered. If a low-voltage-powered
required to evaluate the SEER for these approach currently used in the DOE test electronic thermostat is used, its power
heat pumps. The test procedure sections procedure for two-capacity heat pumps. consumption is often low, usually less
covering two-capacity systems when The active stages of heating capacity than a watt or two. In most cases, an air
operating in a cooling mode are available for each bin temperature conditioner or heat pump can be
applicable for the Hallowell heat calculation would be based on the installed in a system that includes a
pumps. control logic of the unit (10 CFR part variety of wall thermostats. It is not
Proposed test procedure amendments 430, subpart B, appendix M, proposed possible to know the type of thermostat
are offered as part of this rulemaking to section 4.2.6). that will be used or its power
cover heat pumps that provide three DOE seeks comments from interested consumption.
levels or stages of heating capacity like parties on the inclusion of test For testing coil-only air conditioners
the Hallowell units. The proposals seek procedure amendments to cover heat and heat pumps, DOE proposes that the
to cover the more generic case of such pumps that offer three stages of power consumption of the low-voltage
technology.. The proposal includes, compressor capacity when heating. system components be metered.
additional laboratory testing to capture Additionally, the transformer would be
the effect on both capacity and power of 13. Specify Requirements for the Low-
rated to provide 24 V, have a load rating
the additional stage of heating Voltage Transformer Used when Testing
of either 40 or 50 VA, and would be
operations.. The proposed building load Coil-Only Air Conditioners and Heat
designed to operate with a primary
assigned by HSPF calculations requires Pumps and Require Metering of All
input of 230 V, single phase, 60 hertz.
evaluation based on the application in Sources of Energy Consumption During
The transformer may be powered by the
which high-stage compressor capacity All Tests
same source as the outdoor unit or a
for heating exceeds that for cooling. The transformer that powers the low- separate 230 V source. The key
Finally, the proposed coverage accounts voltage components of a field-installed requirement is that the instrument
for controls that lock out one or two hot-air furnace and add-on (coil-only) measuring the transformer’s power
heating mode capacity levels at any air conditioner or heat pump resides in consumption during the off mode power
given outdoor temperature. Once these the furnace. A coil-only air conditioner or any other test must do so within the
proposals are incorporated into the test or heat pump with a hot-air furnace is prescribed measurement accuracy.
procedure, the need for a waiver will be not typically laboratory tested. As a
eliminated and the requirements will result, the DOE test procedure does not 14. Add Testing Procedures and
apply to all manufacturers who offer specify the low-voltage source of power Calculations for Off Mode Energy
equipment with this technology. for the compressor contactor, control Consumption
DOE proposes adding two required boards, and most heat pump reversing SEER is a seasonal descriptor that
steady-state tests to quantify the heating valves. Because the test procedure does accounts for all (modes of) energy
capacity and power consumption not stipulate metering requirements, the consumption that occurs during the
characteristics of the third stage of associated power consumption is cooling season, including times when
heating. One test would be conducted at typically unmetered, which makes the the air conditioner or heat pump is
the existing outdoor temperature test choice of the transformer used cycled off because the building
condition of 17 °F db/15 °F wb inconsequential. A 100 volt amp (VA) thermostat is satisfied. HSPF is a
temperature (H33). The second test transformer powered by a 230 V input seasonal descriptor for heat pumps that
would be at a new outdoor test works as well as a 40 VA model accounts for all (modes of) energy
condition (H43), 2 °F db/1 °F wb. This powered by a 115 V input. consumption during the heating season.
proposed outdoor temperature Because coil-only equipment mainly The current test procedure does not
condition is slightly higher than the 0 °F competes against like equipment, not cover the energy consumption of an air
db/¥2 °F wb condition proposed by
accounting for low-voltage components’ conditioner during the heating season

Hallowell and cited in the approved power consumption in the past was not when the unit is typically turned off at
waiver. The alternative condition is a glaring deficiency as the comparable the thermostat but its controls and
proposed with the intent of specifying a impact on SEER and HSPF ratings. protective devices remain energized.
test condition that is marginally more However, in seeking to account for all The current test procedure also does not
achievable for testing laboratories. modes and sources of energy account for a complete 8,760-hour year
Finally, two optional tests are proposed, consumption as per section 310 of EISA as part of the annual cost calculation. As
a Frost Accumulation Test and a cyclic 2007, DOE proposes that the energy documented in appendix A of ASHRAE
test with the heat pump operating at its consumption of low-voltage Standard 137–2009, ‘‘Method of Testing
for Efficiency of Space-Conditioning/ heating season. The shoulder season’s shoulder seasons for six generalized
Water Heating Appliances that Include off-mode power consumption will be climatic regions currently defined in the
a Desuperheater Water Heater,’’ the designated as P1, which affects both air test procedure. DOE also includes actual
combination of the location-specific conditioner and heat pump energy hours that correspond to the 1,000
cooling and heating load hours used in usage. The heating season off-mode cooling load and the 2,080 heating load
the annual cost calculation is less than power consumption will be designated hours referenced in 10 CFR 430.23(m),
8,760. The missing hours correspond to as P2, which only affects air conditioner ‘‘Test procedures for the measurement of
the intervals during which space energy usage. energy and water consumption—central
conditioning is not required because the (10 CFR part 430, subpart B, appendix air conditioners and heat pumps,’’ as the
outdoor temperature is moderate, as M, proposed section 3.13) representative average use cycles.
during the shoulder seasons that occur DOE has determined that it is not Additionally, DOE provides equations
between the cooling and heating technically feasible to integrate off- for calculating the actual hours for the
seasons. Neither SEER nor HSPF mode energy use into the SEER and cooling, heating, and collective shoulder
account for energy consumed during the HSPF metrics because they are both seasons corresponding to any cooling
shoulder seasons. seasonal descriptors. These seasonal and heating load hour combination.
To provide a means for more clearly descriptors should not be used to As noted above, it is not technically
accounting for the energy consumption account for the out-of-season of off- feasible to use SEER and HSPF to
during the shoulder seasons and, for air mode energy consumption—i.e., the account for the off-mode energy use.
conditioners, the energy consumption energy consumed during the shoulder SEER and HSPF are the seasonal
during the heating season, DOE seasons and during the heating season. performance descriptors for the cooling
proposes to define that such times occur To do so would alter the basis of SEER and heating seasons, respectively.
when the air conditioner or heat pump and HSPF. The basis for the integrated Moreover, such changes would have a
is in an ‘‘off mode.’’ DOE proposes the SEER for an air conditioner would be deleterious impact on the manufacturer
following definition. annual performance, while the basis for and confuse the consumer. Air
the integrated SEER and HSPF for a heat conditioners and heat pumps would no
The term ‘‘off mode’’ means:
pump would be part-year performance. longer be comparable and their energy
(1) For air conditioners, all times during
the non-cooling season of an air conditioner. Annual and part-year bases for SEER efficiency values would only apply to
This mode includes the ‘‘shoulder seasons’’ and HSPF are inconsistent with the similar climactic regions (i.e. one
between the cooling and heating seasons definitions of these regulating metrics. specific combination of cooling season
when the unit provides neither heating nor Moreover, the difference in bases, hours, heating season hours, and
cooling to the building plus the entire annual for the air conditioner versus shoulder season hours). If these energy
heating season, when the unit is idle. The air part-year for the heat pump, disallows efficiency values were integrated, SEER
conditioner is assumed to remain connected the use of the integrated SEER for would be different in Maine than in
to its main power source at all times during
comparing an air conditioner to a heat Florida for similar air conditioner
the off mode; and
(2) For heat pumps, all times during the pump. Therefore, to maintain the design. Therefore, additional
non-cooling and non-heating seasons of a technical integrity of SEER and HSPF precautions would be required to make
heat pump. This mode includes the and to account for off-mode (off season) sure the manufacturer only labels the
‘‘shoulder seasons’’ between the cooling and energy consumption, DOE has units with a ‘‘locally integrated’’ SEER
heating seasons when the unit provides developed a separate algorithm to when selling a unit. This new
neither heating nor cooling to the building. calculate the off-mode (off season) complexity would require the consumer
The heat pump is assumed to remain energy consumption. to have a technically pertinent
connected to its main power source at all The proposed P1 and P2 parameters
times during the off mode.
knowledge to make an informed
are used to evaluate the off-mode energy purchasing decision.
Notably, the above proposed consumption for any generalized DOE seeks comments from interested
definition differs from the one provided climatic region or specific location. parties about off-mode power
in section 310 of EISA 2007, which The shoulder season average off-mode consumption, its definition, and how
amended section 325(gg)(1)(A) of EPCA. power P1 (for air conditioners and heat DOE proposes to add it to the test
(42 U.S.C. 6295(gg)(1)(A)) This section pumps) would be multiplied by the procedure.
of EPCA applies to a wide range of appropriate shoulder season hours to
covered products, and as a result, the obtain the energy consumed during the 15. Add Parameters for Establishing
definitions for off-mode, active mode, collective shoulder seasons. For air Regional Standards
and standby mode are relatively general conditioners during the heating season, Implementation of regional standards
in order to address all possible energy the average off-mode power P2 would for central air conditioners and heat
consuming modes. Rather than be multiplied by the applicable heating pumps is allowed if justified. (42 U.S.C.
introduce alternative definitions for all season hours to obtain the energy 6295(o)(6)(D)(i)) Before DOE can
of these modes within the central air consumed. The calculation of an air establish regional standards it must
conditioner and heat pump test conditioner’s annual energy fulfill two statutory requirements: (1)
procedure, DOE proposes modifying consumption and annual operating cost That the establishment of additional
only the definition for off-mode as part would include both the shoulder season regional standards will produce
of this rulemaking. energy consumption and the energy significant energy savings in
DOE proposes new laboratory tests consumed during the heating season. comparison to establishing only a single
and a separate calculation algorithm for For heat pumps, the energy national standard; and (2) that the
estimating the energy consumption consumption during the shoulder additional regional standards are
during the off-mode season. The new seasons would be included in the economically justified. DOE has
tests and calculations are used to calculation of the annual energy considered regional standards from two
determine an average power consumption and annual operating cost. perspectives: (1) Using the existing
consumption for the collective shoulder As part of today’s notice, DOE SEER and/or HSPF rating but setting the
seasons and, for air conditioners, an provides the actual hours associated regional standard higher than the
average power consumption during the with cooling, heating, and the collective national standard; and (2) evaluating the
regional SEER and/or HSPF using a regional SEER standard based on a The proposed SEER–HD temperature
different algorithm and establishing a region-specific SEER rating (i.e., SEER bin method will use a single set of new
standard based on this region-specific or SEER Hot-Dry (SEER–HD)). The fractional bin hours representative of
SEER and/or HSPF. As part of its subsections that follow discuss test the applicable contiguous States. A
standards rulemaking, DOE is procedure elements that offer revised outdoor design temperature
considering the merits of both mechanisms for capturing equipment would be used in defining the building
alternatives. Notably, DOE does not performance in a climate that differs load for each temperature bin. The zero-
have authority to use a performance from the average climate represented in load balance point will remain at 65 °F,
metric other than SEER and HSPF to the national SEER rating. Until DOE and the assumed oversizing would
quantify performance, either as part of finalizes the list of States in the targeted remain at 10 percent. The assumed
a national rating or as part of a regional region, some numbers and inputs are linear relationship between outdoor db
rating. EER and COP, for example, subject to change. temperature and building load would
cannot be used. also remain. The performance of the air
To consider a standard based on a a. Use a Bin Method for Single-Speed
conditioner or heat pump as a function
region-specific SEER and/or HSPF, DOE SEER Calculations for the Hot-Dry
of outdoor db temperature would be
must implement changes to the test Region and National Rating
based on operating at indoor ambient
procedure. Proposed test procedure The bin calculation structure conditions comparatively drier than
changes are itemized below. These currently used in the DOE test those used for the national rating.
proposed changes were formulated procedure for calculating the SEER of With the planned institution of a bin
based on the framework specified in two-capacity and variable-speed calculation method for all systems when
EISA 2007 and from the results of the systems accounts for the effects of determining the SEER–HD, DOE
preliminary analysis conducted as part outdoor db temperature (including a proposes to eliminate the use of the
of the standards rulemaking. For that shift in the frequency of occurrence), the short-cut method for all single-speed
framework, section 306 of EISA 2007 equipment sizing criteria, and an systems when determining the national
permits DOE to establish up to two alternative building load profile. The SEER, replacing it with the bin
regional standards for cooling products bin calculation method allows a calculation algorithm on which the
in addition to the national standard. (42 mechanism to evaluate the relative short-cut method is based. The benefits
U.S.C. 6295(o)(6)(B)) Further, individual impact of installing an air conditioner or of this proposed transition include
States shall be placed only into a single heat pump in different climates, consistency between rating fixed speed
region. (42 U.S.C. 6295(o)(6)(C)(iii)) In including a hot climate. and modulating systems, an increase in
response, DOE has tentatively decided The simple short-cut equation the potential impact of the A Test
to limit its consideration of regional provided in the DOE test procedure for relative to the B Test, avoidance of
standards to cooling-dominated rating most single-speed systems potential confusion about the validity
contiguous States and, in addition, to typically yields a SEER value that is and basis of the short-cut method,
focus only on a region-specific SEER, close to the SEER value obtained using elimination of concerns that the short-
not HSPF. The natural division of the the temperature bin method; i.e., if the cut method often yields a slightly higher
cooling-dominated region is an east- fractional bin hour distribution, the SEER than the bin method for current
west partitioning where the eastern sizing criteria, and the building load equipment, and consistency between
region generically qualifies as having a line algorithm are the national average the calculation of the national SEER and
hot, humid climate, where the western values. As deviations to this specific regional SEER–HD (10 CFR part 430,
region may be generically categorized as case are introduced, however, the bin subpart B, appendix M, revised sections
hot and dry. calculated SEER will change 4.1 and 4.1.1).
SEER, which has and will continue to accordingly while the short-cut SEER
be used to establish the national will remain unchanged and equal to the b. Add New Hot-Dry Region Bin Data
standard, is evaluated based on indoor value that results from the calculations An important component for
test conditions of 80 °F db/67 °F wb. in 10 CFR part 430, subpart B, appendix implementing a new SEER–HD rating is
These conditions would be suitable to M, section 4.1.1. Thus, the current defining a representative set of outdoor
evaluate performance when the short-cut SEER method cannot be used temperature data for the cooling season.
equipment is applied in the proposed if any calculation parameter changes. This data set is the fractional bin hours
hot-humid region. As a result, test Three potentially differentiating assigned to each 5 °F temperature bin.
procedure changes are not necessary to parameters of the proposed hot-dry Using TMY2 weather data combined
complement a potential hot-humid region are the addition of operating with the calculated building load for
regional standard. As currently planned, hours at bin temperatures above the each temperature bin (based on using
any hot-humid regional standard would current maximum of 102 °F, an the ASHRAE 1 percent design dry-bulb
be based on the current SEER algorithm. appreciable redistribution in the temperature for specific location in
The final SEER assigned to the hot- percentage of hours occurring in each place of the 95 °F used in the DOE test
humid regional standard, however, 5 °F outdoor temperature bin, and a procedure), DOE generated cooling load
could be higher than the value assigned different outdoor design temperature. profiles for cities within those States
for the national standard. To account for the dryness of the region, being considered as part of the hot-dry
As for the proposed hot-dry region, in addition, cooling capacity and region. Using population-based
DOE identified States that could be electrical power can be based on weighting factors for each TMY
included in this region. These States performance achieved when operating location, DOE calculated a population-
and the basis for their selection is with comparatively drier indoor averaged annual cooling load profile
described in the technical support conditions. Because of these projected and a corresponding fractional bin hour
document (TSD) prepared as part of the departures, DOE proposes a bin distribution.
development of the residential central calculation method for evaluating the Table III.2 lists the proposed cooling
air conditioners and heat pumps region-specific SEER for all types of season fractional bin hour distribution
standards. For this region, DOE is systems, including those units having a for the hot-dry region under the column
considering the option of establishing a single-speed compressor. heading SEER–HD (for basis of this
table, see chapter 7 of the preliminary profiles calculated from each bin hour 0.0002, resulted in a 0.001 annual
TSD of the central air conditioner distribution. To three decimal places, cooling load fraction as shown in the
standards rulemaking). For comparison, the cooling season fractional bin hours rightmost column. DOE requests
the current DOE test procedure cooling for the SEER–HD in the 110 to 114 °F comments on the chart below.
season fractional bin hour distribution temperature bin is shown as 0.000;
is shown along with the cooling load however, the actual bin hour fraction,
TABLE III.2—PROPOSED FOUR-STATE HOT-DRY REGION: ARIZONA, CALIFORNIA, NEW MEXICO, NEVADA
Cooling season fractional Resulting cooling load profile
bin hours
Temperature °F
DOE PT.430 SEER–HD
DOE PT.430 SEER–HD
65–69 ............................................................................................................... 0.214 0.477 0.036 0.115

70–74 ............................................................................................................... 0.231 0.208 0.137 0.175
75–79 ............................................................................................................... 0.216 0.119 0.220 0.172
80–84 ............................................................................................................... 0.161 0.086 0.232 0.176
85–89 ............................................................................................................... 0.104 0.047 0.194 0.124
90–94 ............................................................................................................... 0.052 0.027 0.119 0.088
95–99 ............................................................................................................... 0.018 0.021 0.049 0.082
100–104 ........................................................................................................... 0.004 0.011 0.013 0.050
105–109 ........................................................................................................... 0.000 0.004 0.000 0.018
110–114 ........................................................................................................... 0.000 0.000 0.000 0.001
c. Add Optional Testing at the A and B 13 using the 80 °F/67 °F data and a proposes to use an indoor wb
Test Conditions With the Unit in a Hot- SEER–HD of 11 using the dry-coil data. temperature of 64 °F because it lies at
Dry Region Setup The first drop reflects the effects of the the midpoint of the considered range.
Bin calculations account for how the fractional bin hour distribution and a The effect of outdoor temperature on
air conditioner or heat pump’s total different outdoor design temperature for cooling capacity and power
cooling capacity and electrical power the hot-dry region. The second drop consumption can be approximated by a
consumption change with outdoor captures the impact of using dry- linear fit when calculating the national
temperature (and, for modulating instead of wet-coil data. The magnitude SEER using a bin method. As such, DOE
systems, with the compressor’s capacity of the latter drop persuaded DOE to prefers testing at two different outdoor
or speed). During the cooling season for explore a different option. temperatures, with all other operating
the proposed hot-dry region, the air Acknowledging the greater test burden, parameters constant. Ideally, the two
conditioner or heat pump will operate DOE seeks to specify conditions more temperatures should provide a range of
mostly when comparatively less latent representative of a hot-dry region application to maximize interpolation
cooling is needed. By comparison, the installation. values and minimize extrapolation. The
performance data from the currently Lacking any contrary data or national SEER test pair of 82 °F and
required laboratory tests (Tests A and B comments supporting an indoor db 95 °F approach the specified criterion
for single-speed systems) correspond to temperature for the hot-dry region tests for singlespeed units, for the high
indoor test conditions that result in a greater than the 80 °F db temperature capacity of two-capacity units, and for
fully wetted coil and a significant used for standard SEER tests, DOE the maximum speed of variable-speed
amount of latent cooling (typically 20 to proposes to use the 80 °F db temperature systems. The test pair of 67 °F and 82 °F
30 percent of the total capacity). The to minimize the increased test burden. for the low capacity performance of two-
electrical power consumption and EER For the companion wb test condition, capacity units and for the minimum
of a system operating with a fully DOE considered four values: 63 °F, speed performance of variable-speed
wetted coil also differ slightly from the 64 °F, 64.5 °F, and 65 °F. These systems provide the same utility.
values obtained from operating with a candidate wb temperatures were Because of the availability of the
partially wetted or dry coil. selected based upon published reports national SEER wet-coil test data, the
In addition to evaluating the SEER– of field data collected in California drier need to minimize the test burden, and
HD using the same performance data climate zones, a review of indoor test the fact that the performance ratings
used to calculate the national SEER, at conditions selected for hot-dry testing only apply to the hot-dry regional
least two other options are available: by private and university researchers, climate, DOE seeks to minimize the
specify hot-dry, steady-state cooling and the practical aspect of number of new required tests.
mode tests (where indoor conditions are differentiating from the current test Therefore, DOE proposes a combination
representative of such an installation), condition of 67 °F wb temperature of required and optional tests. Instead of
or test at the same indoor conditions (Proctor Engineering Group, Ltd., ‘‘Hot conducting optional tests, DOE proposes
currently specified for the dry-coil tests Dry Climate Air Conditioner [HDAC] using simplified approximating
used to determine the cooling mode Proof of Concept [POC]—Final 3-Ton equations to capture the change in
cyclic degradation coefficient(s). Laboratory Test Analysis Report,’’ Draft performance as the outdoor temperature
To determine the potential impact Report, July 13, 2006 and Southern changes.
that the indoor conditions (wb California Edison, Proctor Engineering As proposed, single-speed systems
temperature) may have on the new Group Ltd., and Bevilacqua-Knight, Inc., will have a single required SEER–HD
SEER–HD rating, DOE conducted ‘‘Energy Performance of Hot, Dry test, which will occur at an outdoor
sample calculations for the bracketing Optimized Air-Conditioning Systems,’’ temperature of 95 °F and be designated
cases. A unit with a tested national PIER Final Project Report, CEC–500– ‘‘the AD Test.’’ Systems having a
SEER of 13.6 would earn a SEER–HD of 2008–056, July 2008). DOE today modulating capability will have two
required tests: one (AD2) occurring at a consumption for temperature bins necessary given the above-described
95 °F outdoor temperature with the unit below the required test temperature method for approximating the
operating at high capacity or maximum (e.g., 95 °F) should be higher than the relationship between cooling capacity
speed, and the other (BD1) occurring at bin-weighted total energy consumed for (power consumption) and outdoor
a 82 °F outdoor temperature with the temperature bins above the test temperature for the hot-dry condition.
unit operating at low capacity or temperature. Conversely, the total bin- DOE also considered ways to account
minimum compressor speed. Before weighted cooling delivered for for an extended indoor fan time delay
conducting the first SEER–HD tests, the temperature bins less than the test mode designed to re-evaporate
system shall be (re)configured, as temperature should exceed the cooling condensate trapped on the coil or lying
applicable, in accordance with any contribution from temperature bins
in the pan. Because the current CD tests
published instructions from the above the test temperature. As a result,
are dry-coil tests, DOE was unable to
manufacturer that pertain to a conservative rating would be achieved
installations in a hot-dry region. if the capacity at the lower temperatures conceive of a change that would permit
As proposed, single-speed systems is under-predicted and the power measurement of such an evaporative
will have a single optional SEER–HD consumption at these temperatures is cooling (latent recovery) mechanism if
test (BD) that would occur at an outdoor over-predicted. To determine the under- employed in the field.
temperature of 82 °F. Systems with a prediction of capacity, the magnitude of d. Add a New Equation for Building
modulating capability would have two the negative slope for the approximated Load Line in the Hot-Dry Region
optional tests: one (BD2) occurring at a capacity versus temperature As part of the evaluation of the newly
82 °F outdoor temperature with the unit relationship should be reduced slightly.
operating at high capacity or maximum proposed region-specific performance
DOE proposes a capacity slope
compressor speed, and the other (FD1) rating, SEER–HD, DOE must establish a
adjustment factor of 0.95. Similarly, the
occurring at a 67 °F outdoor temperature magnitude of the positive slope for the building load line for the SEER–HD (just
with the unit operating at low capacity approximated power consumption as used for evaluating the national
or minimum compressor speed. These versus temperature relationship should SEER):
optional tests provide the additional be reduced slightly. DOE proposes a
data necessary to determine how the power consumption slope adjustment (Tj − TZB ) × Q ck, HD (TOD )
cooling capacity and power factor of 0.95. These adjustment factors ( ) (T − T )
BL Tj =
FOS
consumption change with outdoor are assigned based on the goal of OD ZB
temperature. safeguarding against the default
Instead of conducting the optional equations yielding a higher SEER–HD Where:
test(s), manufacturers can use the than the tested values. DOE specifically Tj = the bin temperature,
capacity and power data collected from requests data showing whether the TZB = the zero load balance point,
the national SEER cooling mode tests TOD = the outdoor design temperature,
magnitudes of these adjustment factors
conducted using 80 °F db/67 °F wb as Q̇kc,HD (TOD) = the unit’s capacity at the
should be changed.
the indoor entering air conditions to Collectively, the approximation design outdoor temperature, and
approximate how the hot-dry region approach that includes the proposed FOS = the oversizing factor.
capacity and power consumption adjustment factors should yield a SEER– As with the calculation of the national
change with outdoor temperature for a HD equal to or slightly less than the SEER, the building load is assumed to
given compressor capacity. Specifically, SEER–HD determined from the optional
vary linearly with outdoor temperature.
the slope of the capacity (or power test(s). DOE wants the approximation to
consumption) versus outdoor Other parameters common to the two
provide a conservative rating, which
temperature relationship for the will avoid over-predicting the actual building load calculations are the zero
comparable 80 °F db/67 °F wb tests will value. When the optional testing is load balance point, the outdoor design
be scaled by multiplying the ratio of the conducted but yields a poorer outcome, temperature, and the oversizing factor:
capacity (or power consumption) a manufacturer shall not be penalized 65 °F, 95 °F and 10 percent (i.e., FOS =
determined from the SEER–HD test by for having conducted the optional SEER 1.1), respectively. As for the 95 °F
the capacity (power consumption) tests. If the SEER–HD determined using outdoor design temperature, DOE
determined from the national SEER test the approximations defined above is arrived at it by calculating the
conducted at the same outdoor higher than the SEER–HD determined population-weighted average of the
temperature. Using a single-speed using the data from the optional test(s), ASHRAE Handbook 1 percent design
system as an example, the slope based the manufacturer may use the higher dry-bulb temperature for multiple cities
on the A and B Tests is multiplied by value. (10 CFR part 430, subpart B, located within the proposed hot-dry
the ratio of the AD Test capacity (or appendix M, revised sections 3.6.2, region. DOE recognizes that across the
power consumption) to the A Test 3.6.3, and 3.6.4) hot-dry region there are significant
capacity (or power consumption). DOE considered additional options differences in cooling design conditions
For approximating the capacity and for modifying the laboratory testing to by location but has proposed 95 °F for
power consumption dependency with differentiate equipment installed in a establishing the load line.
outdoor temperature, DOE proposes hot-dry region. For example, DOE
global adjustment factors to assist in considered setting higher minimum DOE requests comments from
obtaining a conservative SEER–HD. external static pressure requirements for interested parties on the introduction of
Applying the approximated slope, the required and optional SEER–HD regional standards, the use of the bin
estimated capacities for temperatures laboratory tests, as some interested method for determining regional and
above the single-test temperature point parties have advocated increasing the national SEER, the proposed hot-dry
will be over-predicted, while capacities current minimums. DOE elected not to regional bin data, and the addition of
for temperatures below will be under- change these minimums as part of the required and optional testing in a hot-
predicted. Given the proposed required SEER–HD tests to maximize consistency dry region setup.
tests for the hot-dry region, the between the SEER–HD and national
EP02JN10.240</MATH>
calculated weighted energy SEER tests. This consistency is
16. Add References to ASHRAE 116– B. Review Under the National fewer. DOE used the small business size
1995 (RA 2005) for Equations That Environmental Policy Act of 1969 standards published on January 31,
Calculate SEER and HSPF for Variable- In this proposed rule, DOE proposes 1996, as amended, by the SBA to
Speed Systems amendments to test procedures that may determine whether any small entities
be used to implement future energy would be required to comply with the
DOE proposes to reference specific rule. 61 FR 3286, January 31, 1996, as
conservation standards for central air
language and equations within ASHRAE amended at 67 FR 3045, January 23,
conditioners. These amendments will
Standard 116–1995 (RA 2005) that 2002 and at 69 FR 29203, May 21, 2004;
not affect the quality or distribution of
provide greater detail in determining the see also 65 FR 30836, 30850 (May 15,
energy usage and, therefore, will not
three balance point temperatures 2000), as amended at 65 FR 53533,
result in any environmental impacts.
needed when calculating the SEER of an 53545 (September 5, 2000). The size
DOE has determined that this rule falls
air conditioner or heat pump having a standards are codified at 13 CFR part
into a class of actions that are
variable-speed compressor. DOE 121. The standards are listed by North
categorically excluded from review
proposes to do the same for the HSPF American Industry Classification
under the National Environmental
variable-speed algorithm. System (NAICS) code and industry
Policy Act of 1969 (NEPA) (42 U.S.C.
description and are available at http://
The DOE test procedure does not 4321 et seq.) and the Department’s
www.sba.gov/idc/groups/public/
include the equations used for implementing regulations at 10 CFR part
documents/sba_homepage/
calculating the outdoor temperatures at 1021. More specifically, this rule is serv_sstd_tablepdf.pdf.
which the unit’s cooling or heating covered by the Categorical Exclusion in Residential central air conditioner
capacity matches the building’s cooling paragraph A5, to subpart D, 10 CFR part and heat pump equipment
or heating load when operating at 1021. Accordingly, neither an manufacturing is classified under
minimum, intermediate, or maximum environmental assessment nor an NAICS 333415, ‘‘Air-Conditioning and
compressor speeds. (Intermediate speed environmental impact statement is Warm Air Heating Equipment and
is used for laboratory testing.) The DOE required. Commercial and Industrial Refrigeration
test procedure defines these three C. Review Under the Regulatory Equipment Manufacturing.’’ 70 FR
outdoor temperatures and how they are Flexibility Act 12395 (March 11, 2005). DOE reviewed
evaluated. ASHRAE Standard 116–1995 AHRI’s listing of residential central air
The Regulatory Flexibility Act (5 conditioner and heat pump equipment
(RA 2005) provides explicit equations
U.S.C. 601 et seq.) requires preparation manufacturer members and surveyed
for calculating the three outdoor of an initial regulatory flexibility
temperatures for cooling and the three the industry to develop a list of
analysis (IRFA) for any rule that by law domestic manufacturers. As a result of
outdoor temperatures for heating. must be proposed for public comment,
Referencing this standard within the this review, DOE identified 22
unless the agency certifies that the rule, manufacturers of residential central air
DOE test procedure is worthwhile, as it if promulgated, will not have a
may be especially helpful for those new conditioners and heat pumps, of which
significant economic impact on a 15 would be considered small
to either test procedures or testing and substantial number of small entities. As
rating variable-speed products. manufacturers with a total of
required by E.O. 13272, ‘‘Proper approximately 3 percent of the market
DOE proposes adding a sentence Consideration of Small Entities in sales. DOE seeks comment on its
within test procedure sections 4.1.4.2 Agency Rulemaking’’ (67 FR 53461 estimate of the number of small entities
and 4.2.4.2 to reference the applicable (August 16, 2002)), DOE published that may be impacted by the proposed
sections of the ASHRAE Standard that procedures and policies on February 19, test procedure.
provide the exact equations, along with 2003, to ensure that the potential Potential impacts of the proposed test
explanatory text and figures. impacts of its rules on small entities are procedures on all manufacturers,
properly considered during the including small businesses, come from
DOE seeks comments on this
rulemaking process. 68 FR 7990. DOE impacts associated with the cost of
proposal.
has made its procedures and policies proposed additional testing. DOE
17. Update Test Procedure References to available on the Office of the General estimates the incremental cost of the
the Current Standards of AHRI and Counsel’s Web site (http:// proposed additional tests described in
ASHRAE www.gc.doe.gov). 10 CFR part 430, subpart B, appendix M
DOE reviewed today’s proposed rule, (revised sections 3.1, 4.3.1, and 4.3.2;
Since the October 2007 final rule, ARI which would amend the test procedures and proposed sections 3.13 and 4.2.7) to
has merged with the Gas Appliance for residential central air conditioners be an increase of $1,000 to $1,500 per
Manufacturers Association to become and heat pumps, under the provisions of unit tested. This estimate is based on
AHRI. References to ARI within the Regulatory Flexibility Act and the private testing services quoted on behalf
Appendix M need to be updated procedures and policies published on of DOE in the last two years for central
accordingly, as documented below. February 19, 2003. DOE tentatively air conditioners and heat pumps.
concludes and certifies that the Typical costs for running the cooling
IV. Regulatory Review
proposed rule, if adopted, would not tests appear to be approximately $5,000.
A. Review Under Executive Order 12866 result in a significant impact on a DOE estimated that the additional
substantial number of small entities. activities required by the revised test

Today’s regulatory action is not a The factual basis for this certification is procedure would introduce a 20 to 30
‘‘significant regulatory action’’ under set forth below. percent increase in testing time
Executive Order (E.O.) 12866, As defined by the Small Business resulting in approximately $1,000 to
‘‘Regulatory Planning and Review.’’ 58 Administration (SBA) for the Air- $1,500 additional cost. The largest
FR 51735 (October 4, 1993). Conditioning and Warm Air Heating additional cost would be associated
Accordingly, this action was not subject Equipment manufacturing industry, with conducting steady-state cooling
to review by the Office of Management small businesses are manufacturing mode tests and the dry climate tests (for
and Budget under the Executive Order. enterprises with 750 employees or SEER–HD).
Because the incremental cost of all manufacturers with less than 500 conditioners and heat pumps incur in
running the extra tests is the same for employees in this NAICS classification the course of doing business. DOE seeks
all manufacturers, DOE believes that all as the most representative value from comment on its estimate of the impact
manufacturers would incur comparable the 2002 Economic Census data of the of the proposed test procedure
costs for testing of individual basic CAC manufacturers with less than 750 amendments on small entities and its
models as a result of the proposed test employees that are considered small conclusion that this impact is not
procedures. DOE expects that small businesses by the SBA (15 significant.
manufacturers will incur less testing manufacturers). The average annual Accordingly, as stated above, DOE
expense compared with larger value added statistic for all small tentatively concludes and certifies that
manufacturers as a result of the manufacturers with less than 500 this proposed rule would not have a
proposed testing requirements because employees was 7.88 million dollars significant economic impact on a
they have fewer basic models and thus (2009$). substantial number of small entities.
require proportionally less testing when Given this data, and assuming the Accordingly, DOE has not prepared an
compared with large manufacturers that high-end estimate of $1,500 for the IRFA for this rulemaking. DOE will
have many basic models. DOE additional testing costs, DOE concluded provide its certification and supporting
recognizes, however, that smaller that the additional costs for testing of a statement of factual basis to the Chief
manufacturers may have less capital single basic model product under the Counsel for Advocacy of the SBA for
available over which to spread the proposed requirements would be review under 5 U.S.C. 605(b).
increased costs of testing. approximately 0.1% of annual value
D. Review Under the Paperwork
DOE compared the cost of the testing added for the five smallest firms, and
Reduction Act
to the total value added by the approximately 0.02% of the average
manufacturers to determine whether the annual value added for all small CAC This rule contains a collection-of-
impact of the proposed test procedure manufacturers (15 firms). DOE estimates information requirement subject to the
amendments is significant. The value that testing of basic models may not Paperwork Reduction Act (PRA) and
added represents the net economic have to be updated more than once which has been approved by OMB
value that a business creates when it every five years, and therefore the under control number 1910–1400.
takes manufacturing inputs (e.g. average incremental burden of testing Public reporting burden for the
materials) and turns them into one basic model may be one fifth of collection of test information and
manufacturing outputs (e.g. these values when the cost is spread maintenance of records on regulated
manufactured goods). Specifically as over several years. residential central air conditioners and
defined by the U.S. Census, the value DOE requires that only the highest heat pumps based on the certification
added statistic is calculated as the total sales volume split system combinations and reporting requirements is estimated
value of shipments (products be lab tested (10 CFR 430.24(m)). The to average 30 hours per response,
manufactured plus receipts for services majority of air conditioners and heat including the time for reviewing
rendered) minus the cost of materials, pumps offered by a manufacturer are instructions, searching existing data
supplies, containers, fuel, purchased typically split systems that are not sources, gathering and maintaining the
electricity, and contract work expenses. required to be lab tested but can be data needed, and completing and
DOE analyzed the impact on the certified using an alternative rating reviewing the collection of information.
smallest manufacturers of central air method which does not require DOE Send comments regarding this burden
conditioners and heat pumps because testing of these units. DOE reviewed the estimate, or any other aspect of this data
these manufacturers would likely be the available data for five of the smallest collection, including suggestions for
most vulnerable to cost increases. DOE manufacturers to estimate the reducing the burden, to DOE (see
calculated the additional testing incremental testing cost burden for ADDRESSES) and by e-mail to
expense as a percentage of the average those small firms that might experience Christine_Kymn@omb.eop.gov.
value added statistic for the five the greatest relative burden from the Notwithstanding any other provision
individual firms in the 25 to 49 revised test procedures. These of the law, no person is required to
employee size category in NAICS manufacturers had an average of 10 respond to, nor shall any person be
333415 as reported by the U.S. Census models requiring testing (AHRI subject to a penalty for failure to comply
(U.S. Bureau of the Census, American Directory of Certified Product with, a collection of information subject
Factfinder, 2002 Economic Census, Performance http:// to the requirements of the PRA, unless
Manufacturing, Industry Series, www.ahridirectory.org/ahridirectory/ that collection of information displays a
Industry Statistics by Employment Size) pages/home.aspx), while large currently valid OMB control number.
http://factfinder.census.gov/servlet/ manufacturers will have well over a
E. Review Under the Unfunded
EconSectorServlet?_lang=en&ds_ hundred such models. The additional
name=EC0200A1&_ testing cost for final certification for 10 Mandates Reform Act of 1995
SectorId=31&_ts=288639767147>). The models was estimated at $15,000. Title II of the Unfunded Mandates
average annual value for manufacturers Meanwhile these certifications would be Reform Act of 1995 (UMRA; Pub. L.
in this size range from the census data expected to last the product life, 104–4, codified at 2 U.S.C. 1501 et seq.)
was 1.26 million dollars in 2001$, per estimated to be at least five years based requires each Federal agency to assess
the 2002 Economic Census, or on the time frame established in EPCA the effects of Federal regulatory actions
approximately 1.52 million dollars per for DOE review of CAC efficiency on State, local, and Tribal governments
year in 2009$ after adjusting for standards. This test burden is therefore and the private sector. For proposed
inflation using the implicit price estimated to be approximately 0.2% of regulatory actions likely to result in a
deflator for gross domestic product (U.S. the estimated five-year value added for rule that may cause expenditures by
Department of Commerce Bureau of the smallest five manufacturers. DOE State, local, and Tribal governments in
Economic Analysis http://www.bea.gov/ believes that these costs are not the aggregate or by the private sector of
national/nipaweb/SelectTable.asp). significant given other, much more $100 million or more in any one year
DOE also examined the average value significant costs that the small (adjusted annually for inflation), section
added statistic provided by census for manufacturers of central air 202 of UMRA requires a Federal agency
to publish estimates of the resulting determined that it does not preempt pursuant to general OMB guidelines.
costs, benefits, and other effects on the State law and does not have a The OMB’s guidelines were published
national economy. (2 U.S.C. 1532(a), (b)) substantial direct effect on the States, on at 67 FR 8452 (February 22, 2002), and
The UMRA also requires a Federal the relationship between the national DOE’s guidelines were published at 67
agency to develop an effective process government and the States, or on the FR 62446 (October 7, 2002). DOE has
to permit timely input by elected distribution of power and reviewed today’s proposed rule under
officers of State, local, and Tribal responsibilities among the various the OMB and DOE guidelines and has
governments on a proposed ‘‘significant levels of government. EPCA governs and concluded that it is consistent with
intergovernmental mandate’’ and prescribes Federal preemption of State applicable policies in those guidelines.
requires an agency plan for giving notice regulations as to energy conservation for
J. Review Under Executive Order 13211
and opportunity for timely input to the products that are the subject of
potentially affected small governments today’s proposed rule. States can Executive Order 13211, ‘‘Actions
before establishing any requirements petition DOE for a waiver of such Concerning Regulations That
that might significantly or uniquely preemption to the extent, and based on Significantly Affect Energy Supply,
affect small governments. On March 18, criteria, set forth in EPCA. (42 U.S.C. Distribution, or Use,’’ 66 FR 28355 (May
1997, DOE published a statement of 6297) No further action is required by 22, 2001), requires Federal agencies to
policy on its process for E.O. 13132. prepare and submit to the Office of
intergovernmental consultation under Information and Regulatory Affairs
H. Review Under Executive Order 12988 (OIRA), Office of Management and
UMRA. 62 FR 12820. (This policy is
also available at http://www.gc.doe.gov.) With respect to the review of existing Budget, a Statement of Energy Effects for
Today’s proposed rule contains neither regulations and the promulgation of any proposed significant energy action.
an intergovernmental mandate, nor a new regulations, section 3(a) of E.O. A ‘‘significant energy action’’ is defined
mandate that may result in the 12988, ‘‘Civil Justice Reform’’ (61 FR as any action by an agency that
expenditure of $100 million or more in 4729, February 7, 1996), imposes on promulgated or is expected to lead to
any year, so these requirements do not Federal agencies the general duty to promulgation of a final rule, and that (1)
apply. adhere to the following requirements: is a significant regulatory action under
(1) Eliminate drafting errors and E.O. 12866, or any successor order; and
F. Review Under the Treasury and ambiguity; (2) write regulations to (2) is likely to have a significant adverse
General Government Appropriations minimize litigation; (3) provide a clear effect on the supply, distribution, or use
Act, 1999 legal standard for affected conduct of energy; or (3) is designated by the
Section 654 of the Treasury and rather than a general standard; and (4) Administrator of OIRA as a significant
General Government Appropriations promote simplification and burden energy action. For any proposed
Act, 1999 (Pub. L. 105–277) requires reduction. Section 3(b) of E.O. 12988 significant energy action, the agency
Federal agencies to issue a Family specifically requires that Executive must give a detailed statement of any
Policymaking Assessment for any agencies make every reasonable effort so adverse effects on energy supply,
proposed rule that may affect family that the regulation: (1) Clearly specifies distribution, or use should the proposal
well-being. Today’s proposed rule the preemptive effect, if any; (2) clearly be implemented, and of reasonable
would not have any impact on the specifies any effect on existing Federal alternatives to the action and their
autonomy or integrity of the family as law or regulation; (3) provides a clear expected benefits on energy supply,
an institution. Accordingly, DOE has legal standard for affected conduct distribution, and use. Today’s regulatory
concluded that it is unnecessary to while promoting simplification and action would not have a significant
prepare a Family Policymaking burden reduction; (4) specifies the adverse effect on the supply,
Assessment. retroactive effect, if any; (5) adequately distribution, or use of energy and,
defines key terms; and (6) addresses therefore, it is not a significant energy
G. Review Under Executive Order 13132
other important issues affecting clarity action. Accordingly, DOE has not
Executive Order 13132, ‘‘Federalism,’’ and general draftsmanship under any prepared a Statement of Energy Effects.
64 FR 43255 (August 10, 1999) imposes guidelines issued by the Attorney
certain requirements on agencies General. Section 3(c) of E.O. 12988 K. Review Under Executive Order 12630
formulating and implementing policies requires Executive agencies to review DOE has determined, under E.O.
or regulations that preempt State law or regulations in light of applicable 12630, ‘‘Governmental Actions and
that have Federalism implications. The standards in sections 3(a) and 3(b) to Interference with Constitutionally
Executive Order requires agencies to determine whether they are met or it is Protected Property Rights,’’ 53 FR 8859
examine the constitutional and statutory unreasonable to meet one or more of (March 15, 1988), that this proposed
authority supporting any action that them. DOE has completed the required regulation, if promulgated as a final
would limit the policymaking discretion review and determined that to the rule, would not result in any takings
of the States and to assess carefully the extent permitted by law, the proposed that might require compensation under
necessity for such actions. The rule meets the relevant standards of E.O. the Fifth Amendment to the U.S.
Executive Order also requires agencies 12988. Constitution.
to have an accountable process to
ensure meaningful and timely input by I. Review Under the Treasury and L. Review Under Section 32 of the
General Government Appropriations Federal Energy Administration (FEA)
State and local officials in the

development of regulatory policies that Act, 2001 Act of 1974
have Federalism implications. On Section 515 of the Treasury and Under section 301 of the Department
March 14, 2000, DOE published a General Government Appropriations of Energy Organization Act (Pub. L. 95–
statement of policy describing the Act, 2001 (44 U.S.C. 3516 note) provides 91), DOE must comply with section 32
intergovernmental consultation process for agencies to review most of the Federal Energy Administration
it will follow in the development of disseminations of information to the Act of 1974, as amended by the Federal
such regulations. 65 FR 13735. DOE public under information quality Energy Administration Authorization
examined today’s proposed rule and has guidelines established by each agency Act of 1977. When a proposed rule
contains or involves use of commercial Headquarters are subject to advance issues affecting this rulemaking. Each
standards, the rulemaking must inform security screening procedures requiring participant will be allowed to make a
the public of the use and background of a 30-day advance notice. Any foreign prepared general statement (within
such standards. 15 U.S.C. 788 Section national wishing to participate in the DOE-determined time limits) prior to
32. meeting should advise DOE of this fact the discussion of specific topics. DOE
The proposed rule incorporates as soon as possible by contacting Ms. will permit other participants to
testing methods contained in the Brenda Edwards to initiate the comment briefly on any general
following commercial standards: (1) necessary procedures. statements.
ASHRAE Standard 23–2005, ‘‘Methods At the end of all prepared statements
B. Procedure for Submitting Requests To on a topic, DOE will permit participants
of Testing for Rating Positive
Speak to clarify their statements briefly and
Displacement Refrigerant Compressors
and Condensing Units;’’ (2) ASHRAE Any person who has an interest in comment on statements made by others.
Standard 37–2005, ‘‘Methods of Testing today’s notice or who is a representative Participants should be prepared to
for Rating Electrically Driven Unitary of a group or class of persons that has answer questions from DOE and other
Air-Conditioning and Heat Pump an interest in these issues may request participants concerning these issues.
Equipment,’’ sections 7.3.3.1, 7.3.3.3, an opportunity to make an oral DOE representatives may also ask
7.3.4.1, 7.3.4.3, 7.4, 8.2, 8.2.5, and Table presentation. Such persons may hand- questions of participants concerning
3; (3) ASHRAE Standard 41.1–1986 (RA deliver requests to speak, along with a other matters relevant to this
2006), ‘‘Standard Method for computer diskette or CD in WordPerfect, rulemaking. The official conducting the
Temperature Measurement,’’ sections 4, Microsoft Word, PDF, or text (ASCII) file public meeting will accept additional
5, 6, 9, 10, and 11; (4) ASHRAE 41.6– format to the address shown in the comments or questions from those
1994 (RA 2006), ‘‘Standard Method for ADDRESSES section at the beginning of attending, as time permits. The
Measurement of Moist Air Properties,’’ this NOPR between 9 a.m. and 4 p.m. presiding official will announce any
sections 5 and 8; (5) ASHRAE 41.9–2000 Monday through Friday, except Federal further procedural rules or modification
(RA 2006), ‘‘Calorimeter Test Methods holidays. Requests may also be sent by of the above procedures that may be
for Mass Flow Measurements of Volatile mail or e-mail to needed for the proper conduct of the
Refrigerants;’’ (6) ASHRAE Standard Brenda.Edwards@ee.doe.gov. public meeting.
116–1995 (RA 2005), ‘‘Methods of Persons requesting to speak should DOE will make the entire record of
Testing for Rating Seasonal Efficiency of briefly describe the nature of their this proposed rulemaking, including the
Unitary Air Conditioners and Heat interest in this rulemaking, provide a transcript from the public meeting,
Pumps,’’ section 10.2.4; (7) ANSI/AMCA telephone number for contact, and available for inspection at the U.S.
210–07 (ANSI/ASHRAE 51–07), submit an advance copy of their Department of Energy, 6th Floor, 950
‘‘Laboratory Methods of Testing Fans for statements at least one week before the L’Enfant Plaza, SW., Washington, DC
Certified Aerodynamic Performance public meeting. At its discretion, DOE 20024, (202) 586–2945, between 9 a.m.
Rating,’’ Figures 2A and 12; and (8) may permit any person who cannot and 4 p.m. Monday through Friday,
AHRI Standard 210/240–2008 ‘‘Standard supply an advance copy of their except Federal holidays. Any person
for Performance Rating of Unitary Air- statement to participate, if that person may purchase a copy of the transcript
Conditioning & Air-Source Heat Pump has made advance alternative from the transcribing reporter.
Equipment,’’ sections 6.1.3.2, 6.1.3.4, arrangements with the Building
D. Submission of Comments
and 6.1.3.5 and Figures D1, D2, and D4. Technologies Program. The request to
give an oral presentation should ask for DOE will accept comments, data, and
DOE has evaluated these standards and other information regarding the
is unable to conclude whether they fully such alternative arrangements.
proposed rule before or after the public
comply with the requirements of section C. Conduct of Public Meeting meeting, but no later than the date
323(b) of the Federal Energy DOE will designate a DOE official to provided at the beginning of this NOPR.
Administration Act (i.e., whether they preside at the public meeting and may Please submit comments, data, and
were developed in a manner that fully also employ a professional facilitator to other information electronically to
provides for public participation, aid discussion. The meeting will not be RCAC–HP–2009–TP–0004@ee.doe.gov.
comment, and review). a judicial or evidentiary-type public Submit electronic comments in
As required by section 32(c) of the hearing, but DOE will conduct it in WordPerfect, Microsoft Word, PDF, or
Federal Energy Administration Act of accordance with section 336 of EPCA text (ASCII) file format and avoid the
1974 as amended, DOE will consult (42 U.S.C. 6306). A court reporter will use of special characters or any form of
with the Attorney General and the record the proceedings and prepare a encryption. Comments in electronic
Chairman of the FTC before prescribing transcript. DOE reserves the right to format should be identified by the
a final rule about the impact on schedule the order of presentations and docket number EERE–2009–BT–TP–
competition of using the methods to establish the procedures governing 0004 and/or RIN number 1904–AB94
contained in these standards. the conduct of the public meeting. After and wherever possible carry the
V. Public Participation the public meeting, interested parties electronic signature of the author. No
may submit further comments on the telefacsimiles (faxes) will be accepted.
A. Attendance at Public Meeting proceedings as well as on any aspect of According to 10 CFR 1004.11, any
The time and date of the public the rulemaking until the end of the person submitting information that he
meeting are listed in the DATES section comment period. or she believes to be confidential and
at the beginning of this NOPR. The The public meeting will be conducted exempt by law from public disclosure
public meeting will be held at the U.S. in an informal conference style. DOE should submit two copies: one copy of
Department of Energy, Forrestal will present summaries of comments the document including all the
Building, Room 1E–245. To attend the received before the public meeting, information believed to be confidential
public meeting, please notify Ms. allow time for presentations by and one copy of the document with the
Brenda Edwards at (202) 586–2945. participants, and encourage all information believed to be confidential
Foreign nationals visiting DOE interested parties to share their views on deleted. DOE will make its own
determination as to the confidential 8. Will the proposed hot-dry indoor 95 percent and less than or equal to 105
status of the information and treat it test condition of 80 °F db/64 °F wb percent of the nominal cooling capacity
according to its determination. create less stable or less repeatable of the outdoor unit;
Factors of interest to DOE when testing because the indoor coil will (ii) Represent the highest sales
evaluating requests to treat submitted likely be only partially wetted? DOE is volume model family [Note: another
information as confidential include (1) a particularly interested in receiving indoor model family may be used if five
description of the items; (2) whether laboratory data that quantify the relative indoor units from the highest sales
and why such items are customarily differences in performance from testing volume model family do not provide
treated as confidential within the conducted at 80 °F db/64 °F wb versus sufficient capacity to meet the 95
industry; (3) whether the information is 80 °F db/67 °F wb. percent threshold level specified in
generally known by or available from 9. Is it necessary for DOE to develop paragraph (2)(i) of this section];
other sources; (4) whether the and incorporate a regional hot-dry SEER (iii) Individually not have a nominal
information has previously been made rating within the test procedure? cooling capacity greater than 50 percent
available to others without obligation 10. Are the proposed changes to cover of the nominal cooling capacity of the
concerning its confidentiality; (5) an systems similar to Hallowell cold- outdoor unit, unless the nominal
explanation of the competitive injury to climate heat pumps adequate to address cooling capacity of the outdoor unit is
the submitting person which would testing concerns for these products? 24,000 Btu/h or less;
result from public disclosure; (6) a date 11. Are modifications needed, within (iv) Operate at fan speeds consistent
upon which such information might the test procedure, for the laboratory set- with manufacturer’s specifications; and
lose its confidential nature due to the up of through-the-wall air conditioners (v) All be subject to the same
passage of time; and (7) why disclosure and heat pumps? minimum external static pressure
of the information would be contrary to requirement (i.e., 0 in wc for non-
VI. Approval of the Office of the ducted; see entries in the column
the public interest.
Secretary labeled ‘‘Short Duct Systems’’ of Table 2
E. Issues on Which DOE Seeks Comment The Secretary of Energy has approved in Appendix M to subpart B of this part
Although comments are welcome on publication of today’s NOPR. for ducted indoor units) while able to
all aspects of this rulemaking, DOE is produce the same static pressure at the
List of Subjects in 10 CFR Part 430
particularly interested in receiving exit of each outlet plenum when
comments on following issues: Administrative practice and connected in a manifold configuration
1. Specific examples, including procedure, Energy conservation test as per section 2.4.1 of Appendix M.
laboratory data, that address a procedures, Household appliances, * * * * *
stakeholder’s comment on the failure of Incorporation by reference. 3. Section 430.3 is amended:
the test procedure to capture the Issued in Washington, DC on February 12, a. By removing, in paragraph (b)(1),
performance characteristics of an air 2010. ‘‘210/240–2006’’ and adding in its place
conditioner or heat pump that uses Cathy Zoi, ‘‘210/240–2008.’’
‘‘new inverter-driven compressor Assistant Secretary, Energy Efficiency and b. By removing, in paragraph (e)(3),
technology.’’ Renewable Energy. ‘‘(Reaffirmed 2001)’’ and adding in its
2. Do the proposed definitions for off For the reasons set forth in the place ‘‘(Reaffirmed 2006).’’
mode air conditioners and off mode heat preamble, DOE proposes to amend part c. By revising paragraph (e)(7).
pumps clarify the meaning of off mode 430 of chapter II of Title 10, Code of The revisions read as follows:
power? Federal Regulations, to read as follows:
3. What is the impact of proposed § 430.3 Materials incorporated by
lower external static pressure levels and reference.
PART 430—ENERGY CONSERVATION
the proposed language for making sure PROGRAM FOR CONSUMER * * * * *
that these levels are limited to testing PRODUCTS (e) * * *
ducted multi-split systems? (7) ANSI/AMCA 210–07 (ANSI/
4. What is the impact of the change to 1. The authority citation for part 430 ASHRAE 51–07), Laboratory Methods of
the air volume rate setup tolerance? continues to read as follows: Testing Fans for Certified Aerodynamic
Information on real cases where the Authority: 42 U.S.C. 6291–6309; 28 U.S.C. Performance Rating approved August
indoor unit was adversely affected by 2461 note. 17, 2007, IBR approved for Appendix M
the current 5 percent tolerance would be 2. Section 430.2 is amended by to Subpart B.
especially helpful. revising the definition of ‘‘tested * * * * *
5. What is the proposed magnitude of combination’’ to read as follows:
the test operating tolerance for the Appendix M [Amended]
external static pressure relative to its § 430.2 Definitions. 4. Appendix M to subpart B of part
ability to provide an indication of * * * * * 430:
steady, repeatable performance? Tested combination means a multi- (a) In section 1, Definitions by:
6. Do manufacturers foresee obtaining split system with multiple indoor coils 1. Removing, in section 1.2, ‘‘ARI
a SEER–HD rating for all of their having the following features: means Air-Conditioning and
products? If not, what is an approximate (1) The basic model of a system used Refrigeration Institute’’ and adding in its
percentage of systems that will likely as a tested combination shall consist of place ‘‘AHRI means Air-Conditioning,
have a SEER–HD rating? one outdoor unit with one or more Heating and Refrigeration Institute.’’
7. Do manufacturers foresee compressors matched with between two 2. Removing, in section 1.3, ‘‘ARI’’ and
specifying installation instructions that and five indoor units; for the multi-split adding in its place ‘‘AHRI’’ in two
would result in systems being system, each indoor unit shall be locations.
configured differently for the hot-dry designed for individual operation. 3. Removing, in section 1.7, ‘‘RA 01’’
tests than for the normal SEER tests? If (2) The indoor units shall: and adding in its place ‘‘RA 06;’’ and
so, please provide examples of the likely (i) Collectively, have a nominal removing ‘‘2001’’ and adding in its place
differences in the setups. cooling capacity greater than or equal to ‘‘2006.’’
4. Removing, in section 1.9, ‘‘RA 01’’ 16. Removing, in section 2.10.2, Tolerance,’’ and adding in its place
and adding in its place ‘‘RA 06;’’ and by ‘‘430.22’’ and adding in its place ‘‘430.3’’ ‘‘0.12.’’
removing ‘‘2001’’ and adding in its place in two locations. 20. Removing ‘‘2.0’’ in section 3.3
‘‘2006.’’ 17. Removing, in section 2.10.3, Table 7 row ‘‘Nozzle pressure drop, %
5. Adding, in section 1.10, ‘‘(RA 06)’’ ‘‘430.22’’ and adding in its place ‘‘430.3’’ of rdg’’, and adding in its place ‘‘8.0.’’
after ‘‘41.6–00’’ and adding ‘‘and in two locations. 21. Removing ‘‘See Definition 1.41’’ in
reaffirmed in 2006’’ after ‘‘2000.’’ 18. Removing, in section 2.11, section 3.3 Table 7 footnote (1), and
6. Removing, in section 1.11, ‘‘51–99’’ paragraph a. ‘‘430.22’’ and adding in its adding in its place ‘‘See Definition 1.43.’’
and adding in its place ‘‘51–07;’’ and by place ‘‘430.3.’’ 22. Removing ‘‘See Definition 1.40’’ in
removing ‘‘1999’’ and adding in its place 19. Removing, in section 2.11, section 3.3 Table 7 footnote (2), and
‘‘2007’’ in two locations. paragraph b. ‘‘RA 01’’ and adding in its adding in its place ‘‘See Definition 1.42.’’
7. Redesignating sections 1.32 through place ‘‘RA 06,’’ and by removing 23. Redesignating paragraph b. as c. in
1.33 as 1.33 through 1.34 respectively; ‘‘430.22’’ and adding in its place ‘‘430.3.’’ section 3.4, and adding a new paragraph
1.34 through 1.43 as 1.36 through 1.45 20. Removing, in section 2.11, b.
respectively; and 1.44 through 1.47 as paragraph c. ‘‘RA 01’’ and adding in its 24. Removing ‘‘0.05’’ in section 3.3
1.48 through 1.51 respectively. place ‘‘RA 06,’’ and by removing Table 8 column ‘‘Test Operating
8. Adding new sections 1.32, 1.35, ‘‘430.22’’ and adding in its place ‘‘430.3.’’ Tolerance,’’ and adding in its place
1.46, and 1.47. 21. Removing, in section 2.13, ‘‘0.12.’’
(b) In section 2, Testing Conditions, ‘‘430.22’’ and adding in its place ‘‘430.3.’’ 25. Removing ‘‘2.0’’ in section 3.3
by: (c) In section 3, Testing Procedures, Table 8 row ‘‘Airflow nozzle pressure
1. Removing, in section 2.1, ‘‘430.22’’ by: difference or velocity pressure3, % of
and adding in its place ‘‘430.3.’’ 1. Adding three new sentences at the reading’’, and adding in its place ‘‘8.0.’’
2. Revising, in section 2.2 paragraph end of section 3.1. 26. Removing ‘‘See Definition 1.41’’ in
a., and adding new paragraphs d, e, and 2. Removing, in section 3.1.1, section 3.3 Table 8 footnote (1), and
f. ‘‘430.22’’ and adding in its place ‘‘430.3.’’ adding in its place ‘‘See Definition 1.43.’’
3. Revising section 2.2.1. 3. Removing, in section 3.1.3, ‘‘ARI 27. Removing ‘‘See Definition 1.40’’ in
4. Revising section 2.2.3, and adding Standard’’ and adding in its place ‘‘AHRI section 3.3 Table 8 footnote (2), and
new sections 2.2.3.1 and 2.2.3.2. Standard,’’ and by removing ‘‘430.22’’ adding in its place ‘‘See Definition 1.42.’’
5. Revising section 2.2.5 and section and adding in its place ‘‘430.3.’’ 28. Revising, in section 3.5, the text
2.4.1 paragraph b., first sentence. 4. Removing ‘‘95’’ and adding in its following equation (3.5–1) in paragraph
6. Removing, in section 2.4.1d, place ‘‘90’’ in section 3.1.4.1.1, i.
‘‘430.22’’ and adding in its place ‘‘430.3’’ paragraph a.4b. 29. Revising, in section 3.6.2, the first
in two locations. 5. Revising the first sentence of sentence of the first paragraph, Table 10
7. Removing, in section 2.4.2, paragraph a.6 in section 3.1.4.1.1. heading, and adding text following
‘‘430.22’’ and adding in its place ‘‘430.3’’ 6. Revising Table 2 in section
Table 10 footnotes.
in two locations. 3.1.4.1.1.
30. Adding in section 3.6.3 paragraph
8. Removing, in section 2.5, ‘‘430.22’’ 7. Adding new paragraphs d. and e. in
a., 2 sentences at the end of the
and adding in its place ‘‘430.3.’’ section 3.1.4.1.1.
8. Adding a new paragraph e. in paragraph.
9. Removing, in section 2.5.3, 31. Removing, in section 3.6.4,
section 3.1.4.2 .
‘‘430.22’’ and adding in its place ‘‘430.3’’ paragraph a last sentence and two
9. Revising in section 3.1.4.4.2
in two locations. and in the second unnumbered equations, revising
paragraph c. and adding new paragraphs
sentence by removing ‘‘–99’’ and adding paragraphs b and c, and adding new
d. and e.
in its place ‘‘–07’’ in two locations. 10. Removing, in section 3.1.4.4.3, paragraph d.
10. Removing, in section 2.5.4.2, paragraph 4b, ‘‘95’’ and adding in its 32. Adding new sections 3.6.6 and
‘‘430.22’’ and adding in its place ‘‘430.3’’ place ‘‘90’’ and revising the first sentence 3.6.7.
in two locations and in the last sentence of paragraph a.6. 33. Revising, in section 3.7, paragraph
by removing ‘‘RA 01’’ and adding in its 11. Adding, in section 3.1.4.5, a new a., the first sentence of paragraphs b.
place ‘‘RA 06.’’ paragraph f. and d., and adding a new paragraph e.
11. Revising section 2.5.5a. 12. Removing, in section 3.1.5, 34. Revising the introductory sentence
12. Removing, in section 2.5.6, third, ‘‘430.22’’ and adding in its place ‘‘430.3.’’ in section 3.8 and paragraph a.
fourth, and fifth sentences ‘‘RA 01’’ and 13. Removing, in section 3.1.6, 35. Removing, in section 3.8.1,
adding in its place ‘‘RA 06,’’ and by ‘‘430.22’’ and adding in its place ‘‘430.3.’’ ‘‘430.22’’ and adding in its place ‘‘430.3’’,
removing ‘‘430.22’’ and adding ‘‘430.3’’ 14. Adding, in section 3.2.1 following and revising Table 14.
in its place in the three locations. Table 3 footnotes, undesignated text, a 36. Adding ‘‘H23’’ between ‘‘H2’’ and
13. Removing, in section 2.6, new Table 3a and additional ‘‘H22.’’ in section 3.9 introductory
paragraph a, ‘‘–99’’ and adding in its undesignated text. . sentence, revising the last sentence of
place ‘‘–07’’ in two locations; and by 15. Revising sections 3.2.2, 3.2.2.1, paragraph e, and by removing ‘‘430.22’’
removing ‘‘430.22’’ and adding in its and 3.2.2.2. and adding in its place ‘‘430.3’’ in
place ‘‘430.3’’ in three locations. 16. Revising section 3.2.3 paragraph f.
14. Removing, in section 2.6, introductory sentence and paragraph c., 37. Removing, in section 3.9c. ‘‘(see
paragraph b. ‘‘ARI Standard’’ and adding and adding a new paragraph e. Definition 1.42)’’ from the third sentence
in its place ‘‘AHRI Standard’’ in one 17. Adding a new paragraph d. in and adding in its place ‘‘(see Definition
location; and by removing ‘‘430.22’’ and section 3.2.4, and adding new sections 1.44).’’
adding in its place ‘‘430.3’’ in three 3.2.5 and 3.2.6. 38. Removing ‘‘0.05’’ in section 3.9f
locations. 18. Revising section 3.3, paragraphs b. Table 15 column ‘‘Test Operating
15. Removing, in section 2.7, ‘‘ARI and c., and redesignating the second Tolerance,’’ and adding in its place
Standard’’ and adding in its place ‘‘AHRI paragraph d. as paragraph e. ‘‘0.12.’’
Standard,’’ and by removing ‘‘430.22’’ 19. Removing ‘‘0.05’’ in section 3.3 39. Removing ‘‘2.0’’ in section 3.9f
and adding in its place ‘‘430.3.’’ Table 7 column ‘‘Test Operating Table 15 row ‘‘External resistance to
airflow, inches of water’’, and adding in 10. Revising sections 4.3.2 and 4.4, (2) Operating the two-capacity compressor
its place ‘‘8.0.’’ and adding a new section 4.5. at high capacity with the single-speed
40. Removing ‘‘See Definition 1.41’’ in The additions and revisions read as compressor turned on, and
follows: (3) Operating the compressor fully loaded.
section 3.9f. Table 15 footnote (1), and
1.47 Triple-capacity northern heat pump
adding in its place ‘‘See Definition 1.43.’’ Appendix M to Subpart B of Part 430— means a heat pump that provides two stages
41. Removing ‘‘See Definition 1.40’’ in of cooling and three stages of heating. The
Uniform Test Method for Measuring the
section 3.9f. Table 15 footnote (2), and two common stages for both the cooling and
Energy Consumption of Central Air
adding in its place ‘‘See Definition 1.42.’’ heating modes are the low capacity stage and
Conditioners and Heat Pumps
42. Removing, in section 3.9.1a., the high capacity stage. The additional
‘‘430.22’’ and adding in its place ‘‘430.3.’’ * * * * * heating mode stage is called the booster
43. Revising section 3.9.2 paragraph 1. Definitions capacity stage. Of the three heating mode
a., section 3.10, section 3.11.1.1 * * * * * stages, the booster capacity stage offers the
1.32 Off mode means: highest heating capacity output for a given
paragraph a., and 3.11.1.3 paragraph a. set of ambient operating conditions.
44. Removing, in section 3.11.1.3, (1) For air conditioners, all times during
paragraph b., ‘‘430.22’’ and adding in its the non-cooling season of an air conditioner. * * * * *
This mode includes the ‘‘shoulder seasons’’ 2. Testing Conditions
place ‘‘430.3’’ in three locations.
between the cooling and heating seasons * * * * *
45. Revising, in section 3.11.2, when the unit provides no cooling to the
paragraph a. 2.2 Test unit installation requirements.
building and the entire heating season, when a. Except as noted in this appendix, install
46. Removing, in section 3.11.2, the unit is idle. The air conditioner is the unit according to section 8.2 of ASHRAE
paragraph b., ‘‘430.22’’ and adding in its assumed to be connected to its main power Standard 37–2005 (incorporated by reference,
place ‘‘430.3.’’ source at all times during the off mode; and see § 430.3) where references to
47. Removing, in section 3.11.3, (2) For heat pumps, all times during the ‘‘manufacturer’s installation instructions’’
‘‘430.22’’ and adding in its place ‘‘430.3.’’ non-cooling and non-heating seasons of a shall mean the installation instructions that
48. Adding new sections 3.13, 3.13.1, heat pump. This mode includes the come packaged with the unit. If the particular
‘‘shoulder seasons’’ between the cooling and model of air conditioner or heat pump is not
3.13.2, 3.13.2.1, 3.13.2.2, 3.13.3, heating seasons when the unit provides
3.13.3.1, 3.13.3.2, 3.13.3.3, 3.13.3.4, yet in production, the installation
neither heating nor cooling to the building. instructions used must be written and saved
3.13.3.5, 3.13.4, 3.13.4.1, 3.13.4.2, The heat pump is assumed to be connected until they are confirmed as being consistent
3.13.4.3, 3.13.4.4.1, 3.13.4.4.2, to its main power source at all times during with the instructions that are thereafter
3.13.4.4.3, 3.13.4.4.4, 3.13.4.4.5, the off mode. packaged with the full production model.
3.13.4.4.6, 3.13.4.4.7, 3.13.4.4.8, * * * * * With respect to interconnecting tubing used
3.13.4.5, 3.13.4.6, 3.13.5, 3.13.5.1, 1.35 Seasonal Energy Efficiency Ratio— when testing split systems, follow the
3.13.5.2, 3.13.5.33.13.5.4, 3.13.5.4.1, Hot Dry (SEER–HD) means the total heat requirements in section 6.1.3.5 of AHRI
3.13.5.4.2, 3.13.5.43, 3.13.5.4.4, removed from the conditioned space during Standard 210/240–2008 (incorporated by
the annual cooling season for the designated reference, see § 430.3). When testing triple-
3.13.5.4.5, 3.13.5.5, 3.13.5.5.1,
hot-dry climatic region, expressed in Btus, split systems (see Definition 1.48), use the
3.13.5.5.2, 3.13.5.5.3, 3.13.5.6, and divided by the total electrical energy tubing length specified in section 6.1.3.5 of
3.13.5.7. consumed by the air conditioner or heat AHRI Standard 210/240–2008 (incorporated
(d) In section 4, Calculations of pump during the same season, expressed in by reference, see § 430.3) to connect the
Seasonal Performance Descriptors, by: watt-hours. Calculate SEER–HD as specified outdoor coil, indoor compressor section, and
1. Revising, in section 4.1, the in section 4.1.6 of this Appendix. indoor coil while still meeting the
introductory text before equation (4.1– * * * * * requirement of exposing 10 feet of the tubing
2), and the text following equation (4.1– 1.46 Triple-capacity (or triple-stage) to outside conditions. When testing split
2). compressor means an air conditioner or heat systems having multiple indoor coils,
2. Revising section 4.1.1. pump with one of the following: connect each indoor fan-coil to the outdoor
(1) A three-speed compressor, unit using 25 feet of tubing or manufacturer-
3. Adding, in section 4.1.3, at the end furnished tubing, whichever is longer. If
of the first sentence ‘‘, including triple- (2) Two compressors where one is a two-
capacity compressor—as defined in section needed to make a secondary measurement of
capacity northern heat pumps’’. capacity, install refrigerant pressure
1.45—and one is a single-speed compressor
4. Revising, in section 4.1.4.2, the where the two-capacity compressor operates measuring instruments as described in
definitions of T1 and T2 following at both low and high capacity with the section 8.2.5 of ASHRAE Standard 37–2005
equation for calculating B. single-speed compressor turned off and then (incorporated by reference, see § 430.3). Refer
5. Adding new sections 4.1.5, 4.1.5.1, operates exclusively at high capacity when to section 2.10 of this Appendix to learn
4.1.5.2, 4.1.6, 4.1.6.1, 4.1.6.2, 4.1.6.2.1, the single speed compressor is turned on, or which secondary methods require refrigerant
4.1.6.2.2, 4.1.6.3, and 4.1.6.4. (3) A compressor capable of cylinder or pressure measurements. At a minimum,
scroll unloading to provide a total of three insulate the low-pressure line(s) of a split
6. Adding, in section 4.2, item 4 in the system with insulation having an inside
numbered list following the equation for levels of compressor capacity.
For such systems, low capacity means: diameter that matches the refrigerant tubing
DHRmax, and revising the sentence and a nominal thickness of 0.5 inch.
(1) Operating at the low compressor speed,
preceding Table 18. (2) Operating the two-capacity compressor * * * * *
7. Revising, in section 4.2.4.2, the at low capacity with the single-speed d. When testing coil-only air conditioners
definition of T4 following the equation compressor turned off, and and heat pumps, install a nominal 24–V
for A. (3) Operating with the compressor fully transformer to power the low-voltage
8. Adding new sections 4.2.6, 4.2.6.1, unloaded. components of the system. The transformer
4.2.6.2, 4.2.6.3, 4.2.6.4, 4.2.6.5, 4.2.6.6, For such systems, high capacity means: must have a load rating of either 40 or 50 V-
4.2.6.7, 4.2.6.8, 4.2.7, 4.2.7.1, 4.2.7.2, (1) Operating at the high compressor speed, amps and must be designed to operate with
4.2.8, 4.2.8.1, 4.2.8.1.1, 4.2.8.1.2, (2) Operating the two-capacity compressor a primary input that is 230 V, single phase,
4.2.8.1.3, 4.2.8.2, 4.2.8.2.1, 4.2.8.2.2, at high capacity with the single-speed 60 Hz. The transformer may be powered from
compressor turned off, and the same source as supplies powered to the
4.2.8.3, 4.2.8.3.1, and 4.2.8.3.2. (3) Operating with the compressor partially outdoor unit or powered by a separate 230–
9. Revising, in section 4.3.1, the unloaded. V source. The power consumption of the
equation which immediately follows the For such systems, booster capacity means: added low-voltage transformer must be
introductory text, and adding new text (1) Operating at the booster compressor measured as part of the total system power
at the end of the last sentence. speed, consumption during all tests.
e. If the manufacturer’s installation 2.2.3.2 Additional requirements for installation instructions contain two or more
instructions include steps that apply to a hot- ducted systems with a single indoor section sets of refrigerant charging criteria, use the
dry climate different from the steps that containing multiple blowers where the set most appropriate for a normal field
apply for a mixed climate, apply these blowers are designed to cycle on and off installation.
differing installation steps in advance of independently of one another and are not Once the test unit has been properly
conducting the laboratory tests that apply for controlled such that all blowers are charged with refrigerant, all cooling mode
the respective climates. modulated to always operate at the same air and, if a heat pump, all heating mode-
f. For third-party testing conducted to meet volume rate or speed. This Appendix covers laboratory tests shall be conducted, and the
DOE certification requirements, the working systems with a single-speed compressor or testing laboratory shall not add or subtract
relationship between the test laboratory and systems offering two fixed stages of any more refrigerant to or from the test unit.
the manufacturer shall not be restricted as compressor capacity (e.g., a two-speed
compressor, two single-speed compressors). * * * * *
long as the test unit installation and
For any test where the system is operated at 2.4.1 * * *
laboratory testing are conducted in complete
compliance with the procedures specified in its lowest capacity—i.e., the lowest total air * * * * *
this appendix. volume rate allowed when operating the b. For systems having multiple indoor coils
single-speed compressor or when operating or multiple indoor blowers within a single
* * * * * at low compressor capacity—blowers indoor section, attach a plenum to each
2.2.1 Defrost control settings. Set heat
accounting for at least one-third of the full- indoor coil or blower outlet. * * *
pump defrost controls at the normal settings
load air volume rate must be turned off * * * * *
which most typify those encountered in
unless prevented by the controls of the unit. 2.5.5 * * *
generalized climactic region IV. (Refer to In such cases, turn off as many blowers as a. Measure dry bulb temperatures as
Figure 2 and Table 17 of section 4.2 for permitted by the unit’s controls. Where more
information on region IV.) For heat pumps specified in sections 4, 5, 6.1–6.10, 9, 10, and
than one option exists for meeting this ‘‘off’’
that use a time-adaptive defrost control 11 of ASHRAE Standard 41.1–86 (RA 06)
blower requirement, the manufacturer shall
system (see Definition 1.44), the (incorporated by reference, see § 430.3). The
choose which blower(s) are turned off. The
manufacturer must specify the frosting transient testing requirements cited in
chosen configuration shall remain unchanged
interval to be used during the Frost section 4.3 of ASHRAE Standard 41.1–86 (RA
for all tests conducted at the same lowest
Accumulation tests and provide the capacity configuration. For any indoor coil 06) apply if conducting a cyclic or frost
procedure for manually initiating the defrost turned off during a test, take steps to cease accumulation test. If the temperature sensors
at the specified time. To ease testing of any forced airflow through any outlet duct used to measure the indoor-side dry bulb
unit, the manufacturer should provide connected to an ‘‘off’’ blower. temperature difference are different for
information and any necessary hardware to steady-state tests and cyclic tests; in addition,
manually initiate a defrost cycle. * * * * * the two sets of instrumentation must be
2.2.5 Additional refrigerant charging correlated as described in section 3.4 for
* * * * * requirements. The test unit shall be charged
2.2.3 Special requirements for systems cooling mode tests and section 3.8 for heating
in accordance with both the following mode tests.
that would normally operate using two or instructions and the manufacturer’s
more indoor thermostats, including multi- installation instructions described in section * * * * *
split air conditioners and heat pumps, 2.2. 3. Testing Procedures
systems composed of multiple mini-split If the manufacturer’s installation
units (outdoor units located side-by-side), 3.1 * * * Use the testing procedures in
instructions specify as part of a standard
and ducted systems using a single indoor this section to collect the data used for
installation and/or commissioning practice to
section containing multiple blowers. Because calculating (1) the seasonal performance
either alter or check the refrigerant charge
these types of systems will have more than while the unit is operating, the testing ratings for air conditioners and heat pumps
one indoor fan and possibly multiple outdoor laboratory shall do so in conjunction with during the cooling season; (2) the seasonal
fans and compressor systems, references in establishing the cooling full-load air volume performance ratings for heat pumps during
this test procedure to a single indoor fan, rate (see section 3.1.4.1) and operating the heating season; and (3) the seasonal off-
outdoor fan, and compressor mean all indoor entering air conditions specified in the A (or mode power consumption rating(s) for air
fans, all outdoor fans, and all compressor A2) Test. For heating-only heat pumps, this conditioners and heat pumps during the
systems turned on during the test. refrigerant charge evaluation and potential parts of the year not captured by the cooling
2.2.3.1 Additional requirements for adjustment step shall be done in conjunction and heating seasonal performance
multi-split air conditioners and heat pumps with establishing the heating full-load air descriptors. For air conditioners, the non-
and systems composed of multiple mini-split volume rate (see section 3.1.4.4) and cooling seasons are the heating season and
units. For any test where the system is operating entering air conditions specified the shoulder seasons that separate the
operated at part load (i.e., one or more for the H1 (or H12) Test. For the entering db cooling and heating seasons. For heat pumps,
compressors ‘‘off,’’ operating at the and wb air temperature conditions noted the collective shoulder season is the only
intermediate or minimum compressor speed above, determine from the manufacturer’s time of the year where a seasonal off-mode
or at low compressor capacity), the installation instructions the target value(s) for power consumption rating applies.
manufacturer shall designate the particular the system’s measurable operating * * * * *
indoor coils that are turned off during the parameter(s)—e.g., suction superheat 3.1.4.1.1 * * *
test. For variable-speed systems, the temperature, liquid line subcooling a. * * *
manufacturer must designate at least one temperature, refrigerant suction pressure, etc.
indoor unit that is turned off for all tests If the manufacturer’s installation instructions * * * * *
conducted at minimum compressor speed. list a range for a particular parameter, use the 6. If the conditions of step 4b occur first,
For all other part-load tests, the manufacturer midpoint value as the target value. The make an incremental change to the set-up of
shall choose to turn off zero, one, two, or testing laboratory shall add or subtract the the indoor fan that increases air volume rate
more indoor units. The chosen configuration correct amount of refrigerant to achieve as while maintaining the same operating
features (e.g., next highest fan motor pin
shall remain unchanged for all tests closely as possible the target value(s).
conducted at the same compressor speed/ If a unit requires charging but the setting that maintains the same fan delay
capacity. For any indoor coil turned off manufacturer’s installation instructions do interval, next highest fan motor speed) and
during a test, take steps to cease forced not specify a charging procedure, then repeat the evaluation process beginning with
airflow through this indoor coil and block its evacuate the unit and add the nameplate the above step 1. * * *
outlet duct. refrigerant charge. Where the manufacturer’s * * * * *
TABLE 2—MINIMUM EXTERNAL STATIC PRESSURE FOR DUCTED SYSTEMS TESTED WITH AN INDOOR FAN INSTALLED
Minimum external resistance 3
in wc
Rated Cooling 1 or Heating 2 Capacity
Btu/h Multi-split sys- All other sys-
SDHV 4,5 tems tems
≤28,800 ........................................................................................................................................ 1.10 0.03 0.10

29,000–42,500 ............................................................................................................................. 1.15 0.05 0.15
≥43,000 ........................................................................................................................................ 1.20 0.07 0.20
1 For air conditioners and heat pumps, the value cited by the manufacturer in published literature for the unit’s capacity when operated at the A
or A2 Test conditions.
2 For heating-only heat pumps, the value the manufacturer cites in published literature for the unit’s capacity when operated at the H1 or H1
2
Test conditions.
3 For ducted units tested without an air filter installed, increase the applicable tabular value by 0.08 inch of water.
4 See Definition 1.37 to determine if the equipment qualifies as a small-duct, high-velocity system.
5 If a closed-loop, air-enthalpy test apparatus is used on the indoor side, limit the resistance to airflow on the inlet side of the indoor blower coil
to a maximum value of 0.1 inch of water. Impose the balance of the airflow resistance on the outlet side of the indoor blower.
d. For systems having multiple blower coil e. For ducted systems having multiple For systems where individual blowers
indoor units, conduct the above section indoor blowers within a single indoor regulate the speed (as opposed to the cfm) of
3.1.4.1.1 setup steps for each indoor unit section, operate the indoor blowers such that the indoor fan, use the first section 3.1.4.4.2
separately. If two or more indoor units are the lowest air volume rate allowed by the equation for each blower individually. Sum
connected to a common duct as per section unit’s controls is obtained when operating the individual blower air volume rates to
2.4.1, either turn off the other indoor units the lone single-speed compressor or when obtain the heating full-load air volume rate
connected to the same common duct or operating at low compressor capacity while for the system.
temporarily divert their air volume to the test meeting the requirements of section 2.2.3.2
room when confirming or adjusting the setup for the minimum number of blowers that * * * * *
configuration of individual indoor units. If must be turned off. The air volume rate for 3.1.4.4.3 * * *
the indoor units are all the same size or each ‘‘on’’ blower must then be determined a. * * *
model, the target air volume rate for each using the first section 3.1.4.2 equation if the 6. If the conditions of step 4b occur first,
indoor unit equals the full-load air volume blower operates at fixed fan speeds or must make an incremental change to the set-up of
rate divided by the number of indoor units. be specified by the manufacturer if the the indoor fan that increases air volume rate
If different size indoor units are used, the blower is designed to provide a constant air while maintaining the same operating
manufacturer must allocate the system’s full- volume rate. The sum of the individual ‘‘on’’ features (e.g., next highest fan motor pin
load air volume rate assigned to each indoor blowers’ air volume rates is the cooling setting that maintains the same fan delay
unit during this set-up phase. minimum air volume rate for the system. interval, next highest fan motor speed) and
e. For ducted systems having multiple
indoor blowers within a single indoor * * * * * repeat the evaluation process beginning with
section, obtain the full-load air volume rate 3.1.4.4.2 * * * the above step 1. * * *
with all blowers operating unless prevented * * * * * * * * * *
by the controls of the unit. In such cases, turn c. When testing ducted, two-capacity 3.1.4.5 * * *
on the maximum number of blowers northern heat pumps (see Definition 1.50),
permitted by the unit’s controls. Where more
* * * * *
use the appropriate approach of the above f. For ducted systems with multiple indoor
than one option exists for meeting this ‘‘on’’ two cases for units that are installed with an
blower requirement, the manufacturer shall blowers within a single indoor section,
indoor fan installed. For coil-only (fanless)
choose which blower(s) are turned on. obtain the heating minimum air volume rate
northern heat pumps, the Heating Full-Load
Conduct section 3.1.4.1.1 setup steps for each using the same ‘‘on’’ blowers as used for the
Air Volume Rate is the lesser of the rate
blower separately. If two or more indoor specified by the manufacturer or 133 percent cooling minimum air volume rate. For
blowers are connected to a common duct as of the Cooling Full-Load Air Volume Rate. systems where individual blowers regulate
per section 2.4.1, either turn off the other For this latter case, obtain the Heating Full- the speed (as opposed to the cfm) of the
indoor blowers connected to the same Load Air Volume Rate regardless of the indoor fan, use the first section 3.1.4.5
common duct or temporarily divert their air pressure drop across the indoor coil equation for each blower individually. Sum
volume to the test room when confirming or assembly. the individual blower air volume rates to
adjusting the setup configuration of obtain the heating minimum air volume rate
d. For systems having multiple indoor
individual blowers. If the indoor blowers are for the system.
blower coil units where individual blowers
all the same size or model, the target air
regulate the speed (as opposed to the cfm) of * * * * *
volume rate for each blower plenum equals
the indoor fan, use the first section 3.1.4.4.2 3.2.1 * * *
the full-load air volume rate divided by the
number of ‘‘on’’ blowers. If different size equation for each blower coil individually.
Sum the individual blower coil air volume * * * * *
blowers are used within the indoor section, In order to evaluate the cooling season
the manufacturer must allocate the system’s rates to obtain the heating full-load air
volume rate for the system. performance of the test unit when applied in
full-load air volume rate assigned to each a hot-dry climate, conduct one steady-state
‘‘on’’ blower. e. For ducted systems having multiple
indoor blowers within a single indoor test, the AD Test. Conducting an additional
* * * * * section, obtain the heating full-load air steady-state, dry climate test (the BD Test) is
3.1.4.2 * * * volume rate using the same ‘‘on’’ blowers as optional. Test conditions for the two dry
* * * * * used for the cooling full-load air volume rate. climate tests are specified in Table 3A.
TABLE 3a—DRY CLIMATE COOLING MODE TEST CONDITIONS FOR UNITS HAVING A SINGLE-SPEED COMPRESSOR AND A
FIXED-SPEED INDOOR FAN, A CONSTANT AIR VOLUME RATE INDOOR FAN, OR NO INDOOR FAN
Air entering indoor Air entering outdoor
unit temperature unit temperature
°F °F Dry climate
Test description air volume rate
Wet
Dry bulb Wet bulb Dry bulb bulb 1
AD Test—required (steady) .............................. 80 64 95 75 Dry-Climate Full-Load.

BD Test—optional (steady) ............................... 80 64 82 65 Dry-Climate Full-Load.
1The specified test condition only applies if the unit rejects condensate to the outdoor coil.
As an alternative to conducting the power of the test unit at the BD test ĖHD (82) = ĖHD (95) + MDE × (82 ¥ 95)
optional BD Test, use the following equations conditions: Where:
to approximate the capacity and electrical Q̇HD (82) = Q̇HD (95) + MDQ × (82 ¥ 95)
⎡ Q c (95) − Q c (82) ⎤ ⎡ QHD (95) ⎤

MDQ = 0.95 × ⎢ ⎥×⎢ ⎥
⎢⎣ 95 − 82 ⎥⎦ ⎣ Q c (95) ⎦
⎡ E (95) − Ec (82) ⎤ ⎡ EHD (95) ⎤

MDE = 0.95 × ⎢ c ⎥×⎢ ⎥
⎣ 95 − 82 ⎦ ⎣ Ec (95) ⎦
In evaluating the above equations, default equations, whichever contribute to a 3.2.2.1 Indoor fan capacity modulation
determine the quantities Q̇HD (95) and ĖHD higher SEER–HD. that correlates with outdoor dry-bulb
(95) from the AD Test. Determine the Determine and obtain the dry-climate full- temperature or systems with a single indoor
quantities Q̇c (82) and Ėc (82) from the B Test load air volume rate used for the AD and BD coil but multiple blowers. Conduct four
and the quantities Q̇c (95) and Ėc (95) from Tests as specified in section 3.1.4.1 for the steady-state wet-coil tests: the A2, A1, B2, and
B1 Tests. Use the two optional dry-coil tests,
the A Test. Evaluate all six quantities cooling full-load air volume rate, only now
the steady-state C1 Test and the cyclic D1 Test
according to section 3.3. If the manufacturer replacing references to the A Test and
to determine the cooling mode cyclic-
conducts the BD Test, the option of using the cooling full-load with references to the AD degradation coefficient, CDc . If the two
above default equations is not forfeited. Use Test and the dry-climate full load. optional tests are conducted but yield a
the paired values of Q̇HD (82) and ĖHD (82) 3.2.2 Tests for a unit with a single-speed tested CDc that exceeds the default CDc or if
derived from conducting the BD Test and compressor where the indoor section uses a the two optional tests are not conducted,
evaluated as specified in section 3.3 or use single variable-speed variable-air-volume rate assign CDc the default value of 0.25. Table 4
the paired values calculated using the above indoor fan or multiple blowers. specifies test conditions for these six tests.
TABLE 4—COOLING MODE TEST CONDITIONS FOR AIR CONDITIONERS AND HEAT PUMPS WITH A SINGLE-SPEED
COMPRESSOR THAT MEET THE SECTION 3.2.2.1 INDOOR UNIT REQUIREMENTS
Test description °F °F Cooling air volume rate
Dry bulb Wet bulb Dry bulb Wet bulb
A2 Test—required (steady, wet coil) ................. 80 67 95 1 75 Cooling Full-Load.2

A1 Test—required (steady, wet coil) ................. 80 67 95 1 75 Cooling Minimum.3
B2 Test—required (steady, wet coil) ................. 80 67 82 1 65 Cooling Full-Load.2
B1 Test—required (steady, wet coil) ................. 80 67 82 1 65 Cooling Minimum.3
C1 Test4—optional (steady, dry coil) ................. 80 (4) 82 — Cooling Minimum.3
D1 Test4—optional (cyclic, dry coil) .................. 80 (4) 82 — (5)
1The specified test condition only applies if the unit rejects condensate to the outdoor coil.
2Defined in section 3.1.4.1.
3Defined in section 3.1.4.2.
4The entering air must have a low enough moisture content so no condensate forms on the indoor coil. (It is recommended that an indoor wet-
bulb temperature of 57 °F or less be used.)
5 Maintain the airflow nozzles static pressure difference or velocity pressure during the ON period at the same pressure difference or velocity
pressure as measured during the C1 Test.
In order to evaluate the cooling season conditions for the four dry climate tests are unit at the BD2 (k=2) and BD1 (k=1) test
performance of the test unit when applied in specified in Table 4a. As an alternative to conditions:
a hot-dry climate, conduct two steady-state conducting the optional BD2 and BD1 Tests,
tests (the AD2 and the AD1). Two additional use the following equations to approximate
steady-state, hot-dry-climate tests (the BD2 the capacity and electrical power of the test
EP02JN10.241</MATH>
Test and the BD1 Test) are optional. Test
Q HD (82) = Q HD
Where:
k k
(95) + MDQk × (82 − 95)
E HD
k
(82) = E HD
k
(95) + MD Ek × (82 − 95)
⎡ Q ck (95) − Q ck (82) ⎤ ⎡ Q HD
k
(95) ⎤
MDQk = 0.95 × ⎢ ⎥×⎢ k ⎥
⎢⎣ 95 − 82
⎥⎦ ⎢⎣ Qc (95) ⎥⎦
⎡ E ck (95) − E ck (82) ⎤ ⎡ E HD
k
(95) ⎤
MDEk = 0.95 × ⎢ ⎥×⎢ k ⎥
⎢⎣ 95 − 82
⎥⎦ ⎢⎣ E c (95) ⎥⎦
In evaluating the above equations for k=2 above default equations is not forfeited. Use BD2 Tests as specified in section 3.1.4.1 for
(dry-climate full-load air volume rate) and the paired values of Q̇HDk=2 (82) and ĖHDk=2 the cooling full-load air volume rate, only
k=1 (dry-climate minimum air volume rate), (82) derived from conducting the BD2 Test now replacing references to the A2 Test and
determine the quantities Q̇HDk=2 (95) and and evaluated as specified in section 3.3 or cooling full-load with references to the AD2
ĖHDk=2 (95) from the AD2 Test and the use the paired values calculated using the Test and the dry-climate full-load. Similarly,
quantities Q̇HDk=1 (95) and ĖHDk=1 (95) from above default equations, whichever determine and obtain the dry-climate
the AD1 Test. Determine the quantities Q̇ck=2 contribute to a higher SEER–HD. Similarly, minimum air volume rate used for the AD1
(95) and ĖCk=2 (95) from the A2 Test, the use the paired values of Q̇HDk=1 (82) and and BD1 Tests specified in section 3.1.4.2 for
quantities Q̇ck=1 (95) and Ėck=1 (95) from the ĖHDk=1 (82) derived from conducting the BD1 the cooling minimum air volume rate, only
A1 Test, the quantities Q̇ck=2 (82) and ĖCk=2 Test and evaluated as specified in section 3.3 now replacing references to the A1 Test, B1
(82) from the B2 Test, and the quantities Q̇ck=1 or use the paired values calculated using the Test, A2 Test, B2 Test, cooling full-load,
(82) and Ėck=1 (82) from the B1 Test. Evaluate above default equations, whichever cooling minimum, and ΔPst,A2 with references
all 12 quantities according to section 3.3. If contribute to a higher SEER–HD. to the AD1 Test, BD1 Test, AD2 Test, BD2 Test,
the manufacturer conducts either or both the Determine and obtain the dry-climate full- dry-climate full-load, dry-climate minimum,
BD2 and BD1 Tests, the option of using the load air volume rate used for the AD2 and and ΔPst,AD2, respectively.
TABLE 4a—DRY CLIMATE COOLING MODE TEST CONDITIONS FOR AIR CONDITIONERS AND HEAT PUMPS WITH A SINGLE-
SPEED COMPRESSOR THAT MEETS THE SECTION 3.2.2.1 INDOOR UNIT REQUIREMENTS
Test description °F °F Dry climate air volume rate
AD2 Test–required (steady) .............................. 80 64 95 75 Dry-Climate Full-Load.

AD1 Test–required (steady) .............................. 80 64 95 75 Dry-Climate Minimum.
BD2 Test–optional (steady) ............................... 80 64 82 65 Dry-Climate Full-Load.
BD1 Test–optional (steady) ............................... 80 64 82 65 Dry-Climate Minimum.
1 The specified test condition only applies if the unit rejects condensate to the outdoor coil.
3.2.2.2 Indoor fan capacity modulation c. Test two-capacity, northern heat pumps conducting the optional BD2 Test, use the
based on adjusting the sensible to total (S/T) (see Definition 1.50) in the same way as a following equations to approximate the
cooling capacity ratio. The testing single speed heat pump with the unit capacity and electrical power of the test unit
requirements are the same as specified in operating exclusively at low compressor at the BD2 test conditions:
section 3.2.1 and Table 3. Use a cooling full- capacity (see section 3.2.1 and Table 3).
load air volume rate that represents a normal
residential installation. If performed, conduct
* * * * *
e. In order to evaluate the cooling season
Q HD
k =2
(82) = Q HD
k =2
(95) + MDQk= 2 × (82 − 95)
the steady-state C Test and the cyclic D Test performance of the test unit when applied in
with the unit operating in the same S/T a hot-dry climate, conduct two steady-state E HD
k =2
(82) = E HD
k =2
(95) + MD Ek = 2 × (82 − 95)
capacity control mode as used for the B Test. tests, the AD2 and the BD1. Conducting two EP02JN10.245</MATH>
3.2.3 Tests for a unit having a two- additional steady-state, dry-climate tests (the Where:
capacity compressor (see Definition 1.49). BD2 and the FD1) are optional. Test
* * * conditions for the four dry climate tests are
* * * * * specified in Table 5a. As an alternative to
EP02JN10.244</MATH>
⎡ Q ck = 2 (95) − Q ck = 2 (82) ⎤ ⎡ Q HD
k =2
(95) ⎤
MDQk= 2 = 0.95 × ⎢ ⎥ × ⎢ k =2 ⎥
⎢⎣ 95 − 82
⎥⎦ ⎢⎣ Qc (95) ⎥⎦
EP02JN10.243</MATH>
⎡ E ck = 2 (95) − E ck = 2 (82) ⎤ ⎡ E HD
k =2
(95) ⎤
MD Ek = 2 = 0.95 × ⎢ ⎥ × ⎢ k =2 ⎥
⎢⎣ 95 − 82
⎥⎦ ⎢⎣ E c (95) ⎥⎦
EP02JN10.242</MATH>
In evaluating the above equations, equations is not forfeited. Use the paired equations to approximate the capacity
determine the quantities Q̇HDk=2 (95) values of Q̇HDk=2 (82) and ĖHDk=2 (82) and electrical power of the test unit at
and ĖHDk=2 (95) from the AD2 Test. derived from conducting the BD2 Test the FD1 Test conditions:
Determine the quantities Q̇ck=2 (95) and and evaluated as specified in section 3.3
ĖCk=2 (95) from the A2 Test and the or use the paired values calculated Q HD
k =1
(67) = Q HD
k =1
(82) + MDQk=1 × (67 − 82)
quantities Q̇ck=2 (82) and Ėck=2 (82) from using the above default equations,
the B2 Test. Evaluate all six quantities whichever paired values contribute to a
according to section 3.3. If the higher SEER–HD. E HD
k =1
(67) = E HD
k =1
(82) + MD Ek =1 × (67 − 82)
manufacturer conducts the BD2 Test, the As an alternative to conducting the Where:
option of using the above default optional FD1 Test, use the following
⎡ Q ck =1 (82) − Q ck =1 (67) ⎤ ⎡ Q HD
k =1
(82) ⎤
MDQk=1 = 0.95 × ⎢ ⎥ × ⎢ k =1 ⎥
⎢⎣ 82 − 67
⎥⎦ ⎢⎣ Qc (82) ⎥⎦
⎡ E ck =1 (82) − E ck =1 (67) ⎤ ⎡ E HD
k =1
(82) ⎤
MD Ek =1 = 0.95 × ⎢ ⎥ × ⎢ k =1 ⎥
⎢⎣ 82 − 67
⎥⎦ ⎢⎣ E c (82) ⎥⎦
In evaluating the above equations, and evaluated as specified in section 3.3 determine and obtain the dry-climate
determine the quantities Q̇HDk=1 (82) or use the paired values calculated minimum air volume rate used for the
and ĖHDk=1 (82) from the BD1 Test. using the above default equations, BD1 and FD1 Tests as specified in
Determine the quantities Q̇ck=1 (82) and whichever contribute to a higher SEER– section 3.1.4.2 for the cooling minimum
ĖCk=1 (82) from the B1 Test and the HD. air volume rate, only now replacing
quantities Q̇ck=1 (67) and Ėck=1 (67) from Determine and obtain the dry-climate references to the B1 Test, F1 Test, A2
the F1 Test. Evaluate all six quantities full-load air volume rate used for the Test, cooling full load, cooling
according to section 3.3. If the AD2 and BD2 Tests as specified in minimum, and ΔPst,A2 with references to
manufacturer conducts the FD1 Test, the section 3.1.4.1 for the cooling full-load the BD1 Test, FD1 Test, AD2 Test, dry-
option of using the above default air volume rate, only now replacing
climate full-load, dry-climate minimum,
equations is not forfeited. Use the paired references to the A2 Test and cooling
and ΔPst,AD2, respectively.
values of Q̇HDk=1 (67) and ĖHDk=1 (67) full-load with references to the AD2 Test
derived from conducting the FD1 Test and the dry-climate full-load. Similarly,
TABLE 5a—DRY CLIMATE COOLING MODE TEST CONDITIONS FOR AIR CONDITIONERS AND HEAT PUMPS HAVING A TWO-
CAPACITY COMPRESSOR
Air entering indoor unit Air entering outdoor unit
temperature temperature Dry climate air volume
Test description °F °F Compressor capacity rate
AD2 Test—required 80 64 95 75 High .................................. Dry-Climate Full-Load.

(steady).
BD2 Test—optional 80 64 82 65 High .................................. Dry-Climate Full-Load.
(steady).
BD1 Test—required 80 64 82 65 Low ................................... Dry-Climate Minimum.
(steady).
FD1 Test—optional 80 64 67 53.5 Low ................................... Dry-Climate Minimum.
(steady).
1 The specified test condition only applies if the unit rejects condensate to the outdoor coil.
3.2.4 * * * conducting the optional BD2 and FD1 specified in section 3.2.3 for units
* * * * * Tests, use the equations given in section having a two-capacity compressor.
d. In order to evaluate the cooling 3.2.3 to approximate the capacity and 3.2.6 Tests for an air conditioner or
season performance of the test unit electrical power of the test unit at the heat pump having a single indoor unit
when applied in a hot-dry climate, BD2 and FD1 test conditions. having multiple blowers and offering
conduct two steady-state tests, the AD2 3.2.5 Tests for a unit having a triple- two stages of compressor modulation.
Test and the BD1 Test. Conducting two capacity compressor (Definition 1.46). Conduct the cooling mode tests
additional steady-state, dry climate tests With the exception of triple-capacity specified in section 3.2.3. Covered
(the BD2 and the FD1) are optional. Test northern heat pumps (Definition 1.47), multiple blower systems have a single
EP02JN10.247</MATH>
conditions for the four dry climate tests no other units having a triple-capacity indoor coil connected to a single
are specified in Table 5a, only now
compressor are currently addressed outdoor unit offering two stages of
substituting ‘‘Maximum’’ and
within this test procedure. Test triple- capacity modulation, and ones with a
‘‘Minimum’’ for the Compressor
capacity, northern heat pumps for the single indoor coil having two refrigerant
Capacity entries of ‘‘High’’ and ‘‘Low,’’
cooling mode in the same way as circuits where each circuit is connected
EP02JN10.246</MATH>
respectively. As an alternative to
to separate but identical outdoor units, superscript k=2 to denote a test with the of one or both sets of instrumentation
each having a single-speed compressor. unit operating at high capacity or may be required. If all the values for FCD
3.3 * * * maximum speed, k=1 to denote low are within the allowable range, save the
* * * * * capacity or minimum speed, and k=v to final value of the ratio from the 30-
b. After satisfying the pretest denote the intermediate speed. minute test as FCD*.
equilibrium requirements, make the * * * * * If the temperature sensors used to
measurements specified in Table 3 of 3.4 * * * provide the primary measurement of the
ASHRAE Standard 37–2005 * * * * * indoor-side dry bulb temperature
(incorporated by reference, see § 430.3) b. If the temperature sensors used to difference during the steady-state dry-
for the Indoor Air Enthalpy method and provide the primary measurement of the coil test and the subsequent cyclic dry-
the user-selected secondary method. indoor-side dry bulb temperature coil test are the same, set FCD* = 1.
Make the Table 3 measurements at equal difference during the steady-state dry- * * * * *
intervals that span 5 minutes or less. coil test and the subsequent cyclic dry-
Continue data sampling until reaching a 3.5 * * *
coil test are different, include
30-minute period (e.g., seven measurements of the latter sensors * * * * *
consecutive 5-minute samples) where among the regularly sampled data. i. * * *
the test tolerances specified in Table 7 Beginning at the start of the 30-minute Where:
are satisfied. For those continuously data collection period, measure and
recorded parameters, use the entire data compute the indoor-side air dry-bulb τ2
∫ [Ta1 (τ ) − Ta 2 (τ )]δτ , hr × °F,

set from the 30-minute interval to temperature difference using both sets
evaluate Table 7 compliance. Determine
Γ = FCD
*
of instrumentation, DT (Set SS) and DT
τ1
the average electrical power (Set CYC), for each equally spaced data
consumption of the air conditioner or sample. If using a consistent data and, V̇, Cp,a, Vn (or vn), Wn, and FCD* = the
heat pump over the same 30-minute sampling rate that is less than 1 minute, values recorded during the section 3.4
interval. calculate and record minutely averages dry coil steady-state tests,
c. Calculate indoor-side total cooling for the two temperature differences. If and Ta1(t) = dry-bulb temperature of the air
and sensible cooling capacity as entering the indoor coil at time t, °F.
using a consistent sampling rate of one
specified in sections 7.3.3.1 and 7.3.3.3 minute or more, calculate and record * * * * *
of ASHRAE Standard 37–2005 the two temperature differences from
(incorporated by reference, see § 430.3). 3.6.2 Tests for a heat pump having a
each data sample. After having recorded
Do not adjust the parameters used in single-speed compressor and a single
the seventh (i=7) set of temperature
calculating the capacities for the indoor unit having either (1) a variable-
differences, calculate the following ratio
permitted variations in test conditions. speed, variable-air-rate indoor fan
using the first seven sets of values:
Evaluate air enthalpies based on the whose capacity modulation correlates
with outdoor dry bulb temperature or
measured barometric pressure for 1 i ΔT(Set SS)
calculation of the total cooling capacity. FCD = ∑
7 i − 6 ΔT(Set CYC)
(2) multiple blowers. * * *
Use the values of the specific heat of air * * * * *
given in section 7.3.3.1 for calculation Each time a subsequent set of Table 10—Heating Mode Test
of the sensible cooling capacities. temperature differences is recorded (if Conditions for Heat Pumps With a
Assign the average total space cooling sampling more frequently than every 5 Single-Speed Compressor That Meet the
capacity, average sensible cooling minutes), calculate FCD using the most Section 3.6.2 Indoor Unit Requirements
capacity, and average electrical power recent seven sets of values. Continue * * *
consumption over the 30-minute data these calculations until the 30-minute
collection interval to the variables period is completed or until a value for * * * * *
Q̇ck(T), Q̇sck(T), and Ėck(T), respectively. FCD is calculated that falls outside the As an alternative to conducting the
For these three variables, replace T with allowable range of 0.94–1.06. If the optional H21 Frost Accumulation Test,
the nominal outdoor temperature at latter occurs, immediately suspend the use the following equations to
which the test was conducted. The test and identify the cause for the approximate the capacity and electrical
superscript k is used only when testing disparity in the two temperature power of the heat pump at the H21 test
multi-capacity units. Use the difference measurements. Recalibration conditions:
{
Q hk =1 (35) = QRhk = 2 × Q hk =1 (17) + 0.6 × ⎢⎣Q hk =1 (47) − Q hk =1 (17) ⎥⎦ }
E hk =1 (35) = PRhk = 2 × {E k =1
⎢ k =1
h (17) + 0.6 × ⎣ E h ( 47) − E hk =1 (17) ⎥⎦}
EP02JN10.250</MATH>
Where:
EP02JN10.249</MATH>
EP02JN10.248</MATH>
Q hk = 2 (35)
QRhk = 2 (35) =
Q hk = 2 (17) + 0.6 × ⎣⎡Q hk = 2 (47) − Q hk = 2 (17) ⎤⎦
E hk = 2 (35)
PRhk = 2 (35) =
E hk = 2 (17) + 0.6 × ⎡⎣ E hk = 2 (47) − E hk = 2 (17) ⎤⎦
In evaluating the above equations, equations is not forfeited. Use the paired H21 Frost Accumulation Test and
determine the quantities Q̇hk=2(47) and values of Q̇hk=1(35) and Ėhk=1(35) derived calculated as specified in section 3.9 or
Ėhk=2(47) from the H12 Test, determine from conducting the H21 Frost use the paired values calculated using
the quantities Q̇hk=1(47) and Ėhk=1(47) Accumulation Test and evaluated as the above default equations, whichever
from the H11 Test, and evaluate all four specified in section 3.9 or use the paired contribute to a higher Region IV HSPF
quantities according to section 3.7. values calculated using the above based on the DHRmin.
Determine the quantities Q̇hk=2(35) and default equations, whichever contribute * * * * *
Ėhk=2(35) from the H22 Test and evaluate to a higher Region IV HSPF based on the
3.6.4 * * *
them according to section 3.9. DHRmin.
Determine the quantities Q̇hk=2(17) and * * * * * a. * * *
Ėhk=2(17) from the H32 Test, determine 3.6.3 * * * b. As an alternative to conducting the
the quantities Q̇hk=1(17) and Ėhk=1(17) a. * * * If the manufacturer conducts optional H22 Frost Accumulation Test,
from the H31 Test, and evaluate all four the H21 Test, the option of using the use the following equations to
quantities according to Section 3.10. If above default equations is not forfeited. approximate the capacity and electrical
the manufacturer conducts the H21 Test, Use the paired values of Q̇hk=1(35) and power of the heat pump at the H22 test
the option of using the above default Ėhk=1(35) derived from conducting the conditions:
{
Q hk = 2 (35) = 0.90 × Q hk = 2 (17) + 0.6 × ⎢⎣Q hk = 2 (47) − Q hk = 2 (17) ⎥⎦ }
E hk = 2 (35) = 0.985 × {E k =2
h (17) + 0.6 × ⎢⎣ E hk = 2 (47) − E hk = 2 (17) ⎥⎦}
In evaluating the above equations, H1N Test is done, operate the heat temperature tests (H12 and H11), one
determine the quantities Q̇hk=2(47) and pump’s compressor at the same speed as Frost Accumulation test (H22), two low-
Ėhk=2(47) from the H12 Test and evaluate used for the cooling mode A2 Test. Refer temperature tests (H32, H33), and one
them according to section 3.7. to the last sentence of section 4.2 for minimum-temperature test (H43).
Determine the quantities Q̇hk=2(17) and how the results of the H1N Test may be Conduct an additional Frost
Ėhk=2(17) from the H32 Test and evaluate used in calculating the HSPF. Accumulation test (H21) and low-
them according to section 3.10. If the d. For multiple-split heat pumps temperature test (H31) if both of the
manufacturer conducts the H22 Test, the (only), the following procedures following conditions exist: (1)
option of using the above default supersede the above requirements. Knowledge of the heat pump’s capacity
equations is not forfeited. Use the paired * * * and electrical power at low compressor
values of Q̇hk=2(35) and Ėhk=2(35) derived * * * * * capacity for outdoor temperatures of
from conducting the H22 Frost 3.6.6 Tests for a heat pump having a 37 °F and less is needed to complete the
Accumulation Test and evaluated as triple-capacity compressor (Definition section 4.2.6 seasonal performance
specified in section 3.9 or use the paired 1.46). With the exception of triple- calculations; and (2) the heat pump’s
values calculated using the above capacity northern heat pumps controls allow low-capacity operation at
default equations, whichever contribute (Definition 1.47), no other heat pumps outdoor temperatures of 37 °F and less.
to a higher Region IV HSPF based on the having a triple-capacity compressor are
DHRmin. currently addressed within this test If the above two conditions are met,
c. For heat pumps where the heating procedure. Test triple-capacity, northern an alternative to conducting the H21
mode maximum compressor speed heat pumps for the heating mode as Frost Accumulation Test to determine
exceeds their cooling mode maximum follows: Q̇hk=1(35) and Ėhk=1(35) is to use the
compressor speed, conduct the H1N Test (a) Conduct one maximum- following equations to approximate this
if the manufacturer requests it. If the temperature test (H01), two high- capacity and electrical power:
EP02JN10.253</MATH>
{
Q hk =1 (35) = 0.90 × Q hk =1 (17) + 0.6 × ⎢⎣Q hk =1 (47) − Q hk =1 (17) ⎥⎦ }
E hk =1 (35) = 0.985 × {E k =1

⎢ k =1
h (17) + 0.6 × ⎣ E h ( 47) − E hk =1 (17) ⎥⎦}
EP02JN10.252</MATH>
In evaluating the above equations, them according to section 3.7. them according to section 3.10. If the
determine the quantities Q̇hk=1(47) and Determine the quantities Q̇hk=1(17) and manufacturer conducts the H21 Test, the
EP02JN10.251</MATH>
Ėhk=1(47) from the H11 Test and evaluate Ėhk=1(17) from the H31 Test and evaluate option of using the above default
equations is not forfeited. Use the paired paired values calculated using the above at its booster capacity is optional. If this
values of Q̇hk=1(35) and Ėhk=1(35) derived default equations, whichever contribute optional test is not conducted,
from conducting the H21 Frost to a higher Region IV HSPF based on the determine Q̇hk=3(35) and Ėhk=3(35) using
Accumulation Test and evaluated as DHRmin. the following equations to approximate
specified in section 3.9.1 or use the (b) Conducting a Frost Accumulation this capacity and electrical power:
Test (H23) with the heat pump operating
{
Q kh =3(35) = QR hk = 2 (35) × Q kh =3(17) + 1.20 × ⎢⎣Q kh =3(17) − Q kh =3(2) ⎥⎦ }
E kh =3(35) = PR hk = 2 (35) × {E k =3
⎢ k =3
h (17) + 1.20 × ⎣ E h (17) − E kh =3 (2) ⎥⎦}
Where:
Q kh = 2 (35)
QR kh = 2 (35) =
Q kh = 2 (17) + 0.6 × ⎣⎡Q kh = 2 (47) − Q kh = 2 (17) ⎤⎦
E kh = 2 (35)
PR kh = 2 (35) =
E kh = 2 (17) + 0.6 × ⎡⎣ E kh = 2 (47) − E kh = 2 (17) ⎤⎦
Determine the quantities Q̇hk=2(47) to a higher Region IV HSPF based on the value as determined or assigned for the
and Ėhk=2(47) from the H12 Test and DHRmin. low-capacity cyclic-degradation
evaluate them according to section 3.7. (c) Conduct the optional high- coefficient, CDh [or equivalently,
Determine the quantities Q̇hk=2(35) and temperature cyclic test (H1C1) to CDh(k=1)]. Finally, if a triple-capacity
Ėhk=2(35) from the H22 Test and evaluate determine the heating-mode cyclic- heat pump locks out both low and high
them according to section 3.9.1. degradation coefficient, CDh. If this capacity operation at the lowest outdoor
Determine the quantities Q̇hk=2(17) and optional test is conducted but yields a temperatures, conduct the optional low-
Ėhk=2(17) from the H32 Test, determine tested CDh that exceeds the default CDh temperature cyclic test (H3C3) to
the quantities Q̇hk=3(17) and Ėhk=3(17) or if the optional test is not conducted,
determine the booster-capacity heating-
from the H33 Test, and determine the assign CDh the default value of 0.25. If
mode cyclic-degradation coefficient,
quantities Q̇hk=3(2) and Ėhk=3(2) from the a triple-capacity heat pump locks out
low capacity operation at lower outdoor CDh(k=3). If this optional test at the
H43 Test. Evaluate all six quantities
according to section 3.10. If the temperatures, conduct the optional booster capacity is conducted but yields
manufacturer conducts the H23 Test, the high-temperature cyclic test (H1C2) to a tested CDh(k=3) that exceeds the
option of using the above default determine the high-capacity heating- default CDh(k=3) or if the optional test
equations is not forfeited. Use the paired mode cyclic-degradation coefficient, is not conducted, assign CDh(k=3)the
values of Q̇hk=3(35) and Ėhk=3(35) derived CDh(k=2). If this optional test at high default value. The default CDh(k=3) is
from conducting the H23 Frost capacity is conducted but yields a tested the same value as determined or
Accumulation Test and calculated as CDh(k=2) that exceeds the default assigned for the high-capacity cyclic-
specified in section 3.9.1 or use the CDh(k=2) or if the optional test is not degradation coefficient, CDh [or
paired values calculated using the above conducted, assign CDh(k=2) the default equivalently, CDh(k=2)]. Table A
default equations, whichever contribute value. The default CDh(k=2) is the same specifies test conditions for all 13 tests.
TABLE A—HEATING MODE TEST CONDITIONS FOR UNITS WITH A TRIPLE-CAPACITY COMPRESSOR
unit unit
temperature temperature Compressor Heating air volume
Test description °F °F capacity rate
Wet
Dry bulb Dry bulb Wet bulb
bulb
H01 Test (required, steady) .................................................. 70 60(max) 62 56.5 Low .............. Heating Minimum.1
H12 Test (required, steady) .................................................. 70 60(max) 47 43 High ............. Heating Full-Load.2
H1C2 Test (optional, cyclic) .................................................. 70 60(max) 47 43 High ............. 3
H11 Test (required) ............................................................... 70 60(max) 47 43 Low ............. Heating Minimum.1

H1C1 Test (optional, cyclic) .................................................. 70 60(max) 47 43 Low .............. 4
EP02JN10.255</MATH>
H23 Test (optional, steady) .................................................. 70 60(max) 35 33 Booster ........ Heating Full-Load.2
H22 Test (required) ............................................................... 70 60(max) 35 33 High ............. Heating Full-Load.2
H21 Test 5 6 (required) ........................................................... 70 60(max) 35 33 Low ............. Heating Minimum.1
H33 Test (required, steady) .................................................. 70 60(max) 17 15 Booster ........ Heating Full-Load.2
H3C3 Test (optional, cyclic) .................................................. 70 60(max) 17 15 Booster ........ 7
EP02JN10.254</MATH>
H32 Test (required, steady) .................................................. 70 60(max) 17 15 High ............. Heating Full-Load.2
TABLE A—HEATING MODE TEST CONDITIONS FOR UNITS WITH A TRIPLE-CAPACITY COMPRESSOR—Continued
unit unit
temperature temperature Compressor Heating air volume
Test description °F °F capacity rate
Wet
Dry bulb Dry bulb Wet bulb
bulb
H31 Test 5 (required, steady) ................................................ 70 60(max) 17 15 Low ............. Heating Minimum.1
H43 Test (required, steady) .................................................. 70 60(max) 2 1 Booster ........ Heating Full-Load.2
1 Defined in section 3.1.4.5.
2 Defined in section 3.1.4.4.
3 Maintain the airflow nozzle(s) static pressure difference or velocity pressure during the ON period at the same pressure or velocity as meas-
ured during the H12 Test.
5 Required only if the heat pump’s performance when operating at low compressor capacity and outdoor temperatures less than 37 °F is need-
ed to complete the section 4.2.6 HSPF calculations.
6 If table note 5 applies, the section 3.6.6 equations for Q̇ k=1(35) and Ė k=1(17) may be used in lieu of conducting the H2 Test.
h h 1
3.6.7 Tests for a heat pump having a the heat pump until equilibrium Standard 37–2005 (incorporated by
single indoor unit having multiple conditions are maintained for at least 30 reference, see § 430.3) for the Indoor Air
blowers and offering two stages of minutes at the specified section 3.6 test Enthalpy method and the user-selected
compressor modulation. Conduct the conditions. Use the exhaust fan of the secondary method. Make the Table 3
heating mode tests specified in section airflow measuring apparatus and, if measurements at equal intervals that
3.6.3. Covered multiple blower systems installed, the indoor fan of the heat span 5 minutes or less. Continue data
have a single indoor coil connected to pump to obtain and then maintain the sampling until a 30-minute period (e.g.,
a single outdoor unit offering two stages indoor air volume rate and/or external seven consecutive 5-minute samples) is
of capacity modulation and ones having static pressure specified for the reached where the test tolerances
a single indoor coil having two particular test. Continuously record the specified in Table 13 are satisfied. For
refrigerant circuits where each circuit is dry-bulb temperature of the air entering those continuously recorded
connected to separate but identical the outdoor coil. Refer to section 3.11 parameters, use the entire data set for
outdoor units, each having a single- for additional requirements that depend the 30-minute interval when evaluating
speed compressor. on the selected secondary test. After Table 13 compliance. Determine the
3.7 * * * satisfying the pretest equilibrium average electrical power consumption of
a. For the pretest interval, operate the requirements, make the measurements the heat pump over the same 30-minute
test room reconditioning apparatus and specified in Table 3 of ASHRAE interval.
TABLE 13—TEST OPERATING AND TEST CONDITION TOLERANCES FOR SECTION 3.7 AND SECTION 3.10 STEADY-STATE
HEATING MODE TESTS
Test operating Test condition
tolerance 1 tolerance 2
Indoor dry-bulb, °F
Entering temperature .................................................................................................................... 2.0 0.5
Leaving temperature ..................................................................................................................... 2.0 ..................................
Indoor wet-bulb, °F
Entering temperature .................................................................................................................... 1.0 ..................................
Leaving temperature ..................................................................................................................... 1.0 ..................................
Outdoor dry-bulb, °F
Leaving temperature ..................................................................................................................... 2 2.0
Outdoor wet-bulb, °F
Leaving temperature ..................................................................................................................... 3 1.0 ..................................
External resistance to airflow, inches of water .................................................................................... 0.12 4 0.02
Electrical voltage, % of rdg .................................................................................................................. 2.0 1.5

Nozzle pressure drop, % of rdg .......................................................................................................... 8.0 ..................................
1 See Definition 1.43.

2 See Definition 1.42.
3 Only applies when the Outdoor Air Enthalpy Method is used.
4 Only applies when testing non-ducted units.
b. Calculate indoor-side total heating 2005 (incorporated by reference, see d. If conducting the optional cyclic
capacity as specified in sections 7.3.4.1 § 430.3). * * * heating mode test described in section
and 7.3.4.3 of ASHRAE Standard 37– * * * * * 3.8, record the
Ô average indoor-side air
volume rate, V, specific heat of the air,
Cp,a (expressed on a dry air basis), 1 i ΔT(Set SS) variable-speed indoor fan that is
specific volume of the air at the nozzles, FCD = ∑
7 i − 6 ΔT(Set CYC)
expected to be disabled during the
vn′ (or vn), humidity ratio at the nozzles, cyclic test; or
Wn, and either pressure difference or Each time a subsequent set of 2. The heat pump has a (variable-
velocity pressure for the flow nozzles. temperature differences is recorded (if speed) constant-air volume-rate indoor
sampling more frequently than every 5 fan and during the steady-state test the
If the temperature sensors used to
minutes), calculate FCD using the most average external static pressure (ΔP1)
provide the primary measurement of the
recent seven sets of values. Continue exceeds the applicable section 3.1.4.4
indoor-side dry bulb temperature minimum (or targeted) external static
difference during the steady-state dry- these calculations until the 30-minute
period is completed or until a value for pressure (ΔPmin) by 0.03 in wc or more.
coil test and the subsequent cyclic dry-
coil test are different, include FCD is calculated that falls outside the Determine Ėfan,1 by making
measurements of the latter sensors allowable range of 0.94–1.06. If the measurements during the 30-minute
among the regularly sampled data latter occurs, immediately suspend the data collection interval, or immediately
test and identify the cause for the following the test and prior to changing
during the steady-state test. Beginning at
disparity in the two temperature the test conditions. When the above ‘‘2’’
the start of the 30-minute data collection
difference measurements. Recalibration criteria applies, conduct the following
period, measure and compute the of one or both sets of instrumentation four steps after determining Ėfan,1 (which
indoor-side air dry bulb temperature may be required. If all the values for FCD corresponds to ΔP1):
difference using both sets of are within the allowable range, save the
instrumentation, DT(Set SS) and 1. While maintaining the same test
final value of the ratio from the 30- conditions, adjust the exhaust fan of the
DT(Set CYC), for each equally spaced minute test as FCD*. airflow measuring apparatus until the
data sample. If using a consistent data If the temperature sensors used to external static pressure increases to
sampling rate that is less than 1 minute, provide the primary measurement of the approximately ΔP1 + (ΔP1 ¥ ΔPmin).
calculate and record minutely averages indoor-side dry bulb temperature 2. After re-establishing steady
for the two temperature differences. If difference during the steady-state dry- readings for fan motor power and
using a consistent sampling rate of one coil test and the subsequent cyclic dry- external static pressure, determine
minute or more, calculate and record coil test are the same, set FCD* = 1. average values for the indoor fan power
the two temperature differences from e. If either or both of the below (Ėfan,2) and the external static pressure
each data sample. After having recorded criteria apply, determine the average, (ΔP2) by making measurements over a 5-
the seventh (i=7) set of temperature steady-state, electrical power minute interval.
differences, calculate the following ratio consumption of the indoor fan motor 3. Approximate the average power
using the first seven sets of values: (Ėfan,1): consumption of the indoor fan motor if
1. The section 3.8 cyclic test will be the 30-minute test had been conducted
conducted and the heat pump has a at ΔPmin using linear extrapolation:
E fan, 2 − E fan,1
E fan,min = ( ΔPmin − ΔP1 ) + E fan,1
ΔP2 − ΔP1
4. Decrease the total space heating the cyclic heating mode test.’’ Use the were recorded during the section 3.7
capacity, Q̇hk(T), by the quantity (Ėfan,1 test tolerances in Table 14 rather than steady state test conducted at the same
¥ Ėfan,min), when expressed on a Btu/ Table 8. Record the outdoor coil test conditions.
h basis. Decrease the total electrical entering wet-bulb temperature (2) Calculate G using
power, Ėhk(T) by the same fan power according to the requirements given in
difference, now expressed in watts. section 3.5 for the outdoor coil entering τ2
∫ [Ta 2 (τ ) − Ta1 (τ )]δτ , hr ⋅°F,

wet-bulb temperature.
3.8 Test procedures for the optional Drop the subscript ‘‘dry’’ used in
Γ = FCD
*
cyclic heating mode tests (the H0C1, variables cited in section 3.5 when τ1
H1C, H1C1, H1C2, and H3C3 Tests). a. referring to quantities from the cyclic
Except as noted below, conduct the Where:
heating mode test. Determine the total
cyclic heating mode test as specified in space heating delivered during the FCD* = recorded during the section 3.7
section 3.5. As adapted to the heating cyclic heating test, qcyc, as specified in steady state test conducted at the same
mode, replace section 3.5 references to section 3.5 except for making the test conditions.
‘‘the steady-state dry coil test’’ with ‘‘the following changes: * * * * *
heating mode steady-state test (1) When Ô evaluating Eq. 3.5–1, use the
conducted at the same test conditions as values of V, Cp,a, vn′ (or vn), and Wn that 3.8.1 * * *
EP02JN10.258</MATH>
TABLE 14—TEST OPERATING AND TEST CONDITION TOLERANCES FOR CYCLIC HEATING MODE TESTS

EP02JN10.257</MATH>
Indoor entering dry-bulb temperature, ° F ....................................................................................................... 2.0 0.5

Indoor entering wet-bulb temperature, ° F ...................................................................................................... 1.0 ............................
Outdoor entering dry-bulb temperature, ° F .................................................................................................... 2.0 0.5
Outdoor entering wet-bulb temperature, ° F ................................................................................................... 2.0 1.0
EP02JN10.256</MATH>
External resistance to air-flow,3 inches of water ............................................................................................. 0.12 ............................
TABLE 14—TEST OPERATING AND TEST CONDITION TOLERANCES FOR CYCLIC HEATING MODE TESTS—Continued
Airflow nozzle pressure difference or velocity pressure, 3 % of reading ........................................................ 2.0 4 2.0
Electrical voltage,5 % of rdg ............................................................................................................................ 8.0 1.5
1 SeeDefinition 1.43.
2 SeeDefinition 1.42.
3 Applies during the interval that air flows through the indoor (outdoor) coil except for the first 30 seconds after flow initiation. For units having a
variable-speed indoor fan that ramps, the tolerances listed for the external resistance to airflow shall apply from 30 seconds after achieving full
speed until ramp down begins.
4 The test condition shall be the average nozzle pressure difference or velocity pressure measured during the steady-state test conducted at
the same test conditions.
5 Applies during the interval that at least one of the following—the compressor, the outdoor fan, or, if applicable, the indoor fan—are operating,
except for the first 30 seconds after compressor start-up.
* * * * * are determined, no sooner than 10 refrigerant flow rate. Or for cases where
3.9 * * * minutes after defrost termination. the superheat of the refrigerant leaving
e. * * * Sample the remaining Defrosts should be prevented over the the evaporator is less than 5 °F, use the
parameters listed in Table 15 at equal 30-minute data collection interval. calorimeter to measure total capacity
intervals that span 5 minutes or less. * * * * * rather than refrigerant flow rate.
* * * * * 3.11.1.1 * * * Conduct these calibration tests at the
3.9.2 * * * a. The test conditions for the same test conditions as specified for the
a. Assign the demand defrost credit preliminary test are the same as tests in this Appendix. Operate the unit
Fdef used in section 4.2 to the value of specified for the official test. Connect for at least one hour or until obtaining
1 in all cases except for heat pumps the indoor air-side apparatus to the equilibrium conditions before collecting
having a demand-defrost control system indoor coil; disconnect the outdoor air- data that will be used in determining
(Definition 1.21). For such qualifying side test apparatus. Allow the test room the average refrigerant flow rate or total
heat pumps, evaluate Fdef using reconditioning apparatus and the unit capacity. Sample the data at equal
being tested to operate for at least 1 intervals that span 5 minutes or less.
⎡ Δτ def − 1.5 ⎤ hour. After attaining equilibrium Determine average flow rate or average
Fdef = 1 + 0.03 ⋅ ⎢1 − ⎥, conditions, measure the following capacity from data sampled over a 30-
⎣ Δτ max − 1.5 ⎦ quantities at equal intervals that span 5 minute period where the Table 7
Where: minutes or less: (cooling) or the Table 13 (heating)
ΔTdef = the time between defrost 1. The section 2.10.1 evaporator and tolerances are satisfied. Otherwise,
terminations (in hours) or 1.5, condenser temperatures or pressures; conduct the calibration tests according
whichever is greater. A value of 6 must 2. Parameters required according to to ASHRAE Standard 23–05
be assigned to ΔTdef if this limit is the indoor air enthalpy method. (incorporated by reference, see § 430.3),
reached during a frost accumulation test Continue these measurements until a ASHRAE Standard 41.9–2000
and the heat pump has not completed 30-minute period (e.g., seven (incorporated by reference, see § 430.3),
a defrost cycle. consecutive 5-minute samples) is and section 7.4 of ASHRAE Standard
ΔTmax = maximum time between obtained where the Table 7 or Table 13, 37–2005 (incorporated by reference, see
defrosts as allowed by the controls (in whichever applies, test tolerances are § 430.3).
hours) or 12, whichever is less. The satisfied.
* * * * *
value of ΔTmax must be provided by the * * * * *
manufacturer. 3.11.1.3 * * * 3.13 Laboratory testing to determine
* * * * * a. Continue (preliminary test was off-mode energy consumption. The
3.10 Test procedures for steady-state conducted) or begin (no preliminary below laboratory testing is used to
low and minimum temperature heating test) the official test by making estimate the energy consumption of an
mode tests (the H3, H33, H32, H31, and measurements for both the indoor and air conditioner during the non-cooling
H43 Tests). Except for modifications outdoor air enthalpy methods at equal seasons, the heating and shoulder
noted in this section, conduct the low intervals that span 5 minutes or less. seasons that separate the cooling and
temperature and minimum temperature Discontinue these measurements only heating seasons. Testing to estimate the
heating mode tests using the same after obtaining a 30-minute period energy consumption of a heat pump
approach as specified in section 3.7 for where the specified test condition and during the collective shoulder seasons is
the maximum and high temperature operating tolerances are satisfied. To also described. The extent of the testing
tests. After satisfying the section 3.7 constitute a valid official test: strongly depends on whether the test
requirements for the pretest interval but 1. Achieve the energy balance unit includes a compressor crankcase
before beginning to collect data to specified in section 3.1.1; and, heater, the heater is thermostatically
controlled, and the heater is provided
determine Q̇hk (17) or Q̇hk (2) and Ėhk 2. For cases where a preliminary test
(17) or Ėhk (2) , conduct a defrost cycle is conducted, the capacities determined on an air conditioner or heat pump.
that can be initiated manually or using the Indoor Air Enthalpy Method 3.13.1 Determine if the air conditioner
automatically. The defrost sequence from the official and preliminary test or heat pump has a compressor
must be terminated by the action of the periods must agree within 2 percent. crankcase heater. If so equipped, turn
heat pump’s defrost controls. Begin the * * * * * off the power to the outdoor unit, isolate
30-minute data collection interval 3.11.2 * * * the leads that supply power to the
described in section 3.7 from which Q̇hk a. Conduct separate calibration tests crankcase heater, measure the resistance
EP02JN10.259</MATH>
(17) and Ėhk (17) or Q̇hk (2) and Ėhk (2) using a calorimeter to determine the of the heater circuit, record the value as
RCC, reconnect the heater’s leads, and 3.13.3.4 Integrate the power reading is measured. If this measured
resupply power to the outdoor unit. consumption of the heat pump over a 5- temperature is equal to or less than T00
Determine from the manufacturer if minute interval. Calculate the average + 2.5 °F, then the manufacturer-
the compressor crankcase heater is power consumption rate for the interval. provided T00 is verified. If the
thermostatically controlled. If the heater Record this value as P1H. measured temperature is greater than
is thermostatically controlled, the 3.13.3.5 Calculate P1 = (P1C + P1H)/ T00 + 2.5 °F, round the measured
manufacturer must provide: 2 and round to the nearest even wattage. outdoor temperature to the nearest 2.5
a. A value for the outdoor Assign RCC=0 and P2=0. °F increment relative to a 65 °F
temperature, T00, at which the 3.13.4 For air conditioners having a reference (e.g., 67.5 °F, 70.0 °F, 72.5 °F,
crankcase heater is expected to begin compressor crankcase heater, conduct * * * or 65.0 °F, 62.5 °F, 60.0 °F,
heating if the indoor temperature is the following off-mode power test. * * *) and designate this rounded value
above 75 °F and no space conditioning 3.13.4.1 Conduct the test as the new T00.
has been needed for a long enough time immediately following the final cooling
mode test. 3.13.4.4.5 If the manufacturer-
that the compressor’s shell temperature provided T100 is greater than or equal
equals the outdoor air temperature; and 3.13.4.2 If the compressor crankcase
heater is not thermostatically controlled, to T00¥10 °F then T100 is deemed
b. A value for the outdoor
then (1) configure the controls of the air verified. If T100 > T00, then set T100 =
temperature, T100, at which the
conditioner to mimic the operating T00. Skip to section 3.13.4.5.
crankcase heater is expected to begin
continuous heating if the indoor mode if connected to a building 3.13.4.4.6 As needed, depart from
temperature is above 75 °F and no space thermostat set to the OFF mode; (2) the EOTCR to obtain and then maintain
conditioning is needed. assign T00 = T100 = 75 °F; and (3) skip within ±1.0 °F an outdoor dry bulb
3.13.2 For air conditioners not to section 3.13.4.5.9. temperature that is between 10 °F and
having a compressor crankcase heater, 3.13.4.3 If the compressor crankcase 15 °F less than T00. During the time that
conduct the following off-mode power heater is thermostatically controlled and the outdoor temperature is maintained
test. the manufacturer-provided T100 is within the ±1.0 °F tolerance, monitor
3.13.2.1 Conduct the test greater than or equal to 75 °F, then (1) the elapsed time of each power-high
immediately following the final cooling T00 and T100 are deemed verified; (2) interval (DtPH) and the elapsed time of
mode test. No requirements are placed configure the controls of the air the power-low interval (DtPL) that
on the ambient conditions within the conditioner to mimic the operating immediately follows. Also monitor the
indoor and outdoor test rooms. The mode if connected to a building outdoor temperature. Start data
room conditions are allowed to change thermostat that is set to the OFF mode; collection at the beginning of a power-
for the duration of this particular test. and (3) skip to section 3.13.4.5.9. high interval—elapsed time = 0. If one
Configure the controls of the air 3.13.4.4.1 Configure the controls of or more power-high + power-low cycles
conditioner to mimic the operating the air conditioner to mimic the is completed when the elapsed time
mode if connected to a building operating mode if connected to a equals 20 minutes, discontinue the data
thermostat that is set to the OFF mode. building thermostat that is set to the collection and proceed to section
3.13.2.2 Integrate the power OFF mode. Maintain the dry bulb 3.13.4.4.7. If a power-high interval is
consumption of the air conditioner over temperature in the indoor test room completed before the elapsed time
a 5-minute interval. Calculate the between 75 °F and 85 °F. equals 30 minutes, monitor until the
average power consumption rate for the 3.13.4.4.2 Monitor the power subsequent power-low interval is
interval. Round this value to the nearest consumption of the air conditioner and finished before discontinuing the data
even wattage value and record it as both denote two operating states: (1) Power collection and proceeding to section
P1 and P2. Assign RCC=0. draw is at a lower level corresponding 3.13.4.4.7. If a power-low condition has
3.13.3 For heat pumps not having a to no current flowing to the compressor not started at an elapsed time of 30
compressor crankcase heater, conduct crankcase heater (power-low) and (2) minutes or within 45 minutes of first
the following off-mode power test. power draw is at the higher level obtaining outdoor conditions that meet
3.13.3.1 Conduct the test corresponding to the compressor the ±1.0 °F tolerance, then assign T100
immediately following the final cooling crankcase heater operating (power- = T00¥10 °F and skip to section
mode test. No requirements are placed high). 3.13.4.5.
on the ambient conditions within the 3.13.4.4.3 As needed, temporarily
depart from the end of test cooling rate 3.13.4.4.7 Designate the total
indoor and outdoor test rooms. The
(EOTCR) until the outdoor temperature number of completed power-high +
room conditions are allowed to change
is at least 3 °F higher than T100 for at power-low intervals from section
for the duration of this particular test.
least 15 minutes or, if the crankcase 3.13.4.4.6 as NCC. Calculate the average
Configure the controls of the heat pump
heater is observed to cycle on (power- outdoor temperature recorded over the
to mimic the operating mode if
high) at this temperature, keep corresponding interval of complete
connected to a building thermostat that
increasing the outdoor temperature until cycles and designate it as TCC. Calculate
is set to the COOL mode but whose
the compressor crankcase heater the average percent on-time of the
temperature setpoint is satisfied.
3.13.3.2 Integrate the power remains off (power-low) for at least 15 crankcase heater, FCC, using
consumption of the heat pump over a 5- minutes. The compressor must have N HL
minute interval. Calculate the average

power consumption rate for the interval.
cycled off prior to beginning either 15
minute count. ∑ ΔτPH
Record this value as P1C. 3.13.4.4.4 Re-establish cooling the FCC = N HL
1
× 100%
3.13.3.3 Re-configure the controls of
the heat pump to mimic the operating
outdoor test room with the
reconditioning system set to provide ∑ ( ΔτPH + ΔτPL )
1
mode if connected to a building EOTCR. As the outdoor temperature
thermostat that is set to the HEAT mode decreases, monitor the test unit’s Using the T00 from section 3.13.4.4.4,
but whose temperature setpoint is electrical power and record the outdoor FCC, and TCC, estimate the outdoor
EP02JN10.260</MATH>
satisfied. temperature when the first power-high temperature at which the crankcase
heater would first begin to operate

continuously:
(TCC − T 00 ) °F
T 100 ( Lab ) = × (100 − 0)% + T 00
( FCC − 0 ) %
100
= T 00 − × (T 00 − TCC )
FCC
If T100(Lab) ≤ T100 + 2.5 °F, then the (e.g., 67.5 °F, 70.0 °F, 72.5 °F, * * * or 3.13.4.4.8 Approximate the percent
manufacturer-provided T100 is verified. 65.0 °F, 62.5 °F, 60.0 °F, * * *) and time on of the crankcase heater at any
If T100(Lab) > T100 + 2.5 °F, round designate this rounded value as the new outdoor temperatures between T00 and
T100(Lab) to the nearest 2.5 °F T100. T100 using
increment relative to a 65 °F reference
(100 − 0)% T 00 − Tj
( )
FCC Tj =
(T 100 − T 00)°F
(
× Tj − T 00 = )
T 00 − T 100
× 100%.
For outdoor temperatures Tj that are 3.13.5.3 If the compressor crankcase when the elapsed time equals 20
greater than or equal to T00, assign heater is thermostatically controlled and minutes, discontinue the data collection
FCC(Tj)=0. For outdoor temperatures that the manufacturer-provided T100 is and proceed to section 3.13.5.4.3. If a
are less than or equal to T100, assign greater than or equal to 65 °F, then power-high interval is completed before
FCC(Tj)=100 percent. assign FCC(65 °F) = 100 percent and skip the elapsed time equals 30 minutes,
3.13.4.5 At this point in the off- to section 3.13.5.5. monitor until the subsequent power-low
mode power test, no requirements are 3.13.5.4 If the compressor crankcase interval is finished before discontinuing
placed on the ambient conditions heater is thermostatically controlled and the data collection and proceeding to
within the indoor and outdoor test the manufacturer-provided T100 is less section 3.13.5.4.3. If a power-low
rooms. The room conditions are allowed than 65 °F, obtain and then maintain the condition has not started at an elapsed
to change for the duration of this outdoor dry bulb temperature between time of 30 minutes or within 45 minutes
particular test. Temporarily turn off the 64 °F and 66 °F. Maintain the dry bulb of first obtaining an outdoor
power to the outdoor unit and safely temperature in the indoor test room temperature between 64 °F and 66 °F,
disable the compressor crankcase heater between 75 °F and 85 °F. then assign FCC(65 °F) = 100 percent and
to prevent it from consuming any 3.13.5.4.1 Monitor the power skip to section 3.13.5.5.
electrical power. Re-energize the consumption of the heat pump and 3.13.5.4.3 Designate the total
outdoor unit. denote the two operating states: (1) number of completed power-high +
Power draw is at a lower level power-low intervals as NCC. Calculate
3.13.4.6 Integrate the power
corresponding to no current flowing to
consumption of the air conditioner over the average outdoor temperature over
the compressor crankcase heater
a 5-minute interval. Calculate the the corresponding interval of complete
(power-low); and (2) power draw is at
average power consumption rate for the cycles and designate it as TCC. Calculate
the higher level corresponding to the
interval. Record the value as P0. the average percent on-time of the
compressor crankcase heater operating
3.13.5 For heat pumps having a crankcase heater, FCC, using
(power-high).
compressor crankcase heater, conduct 3.13.5.4.2 After the compressor has N HL
the following off-mode power test.
3.13.5.1 The test shall be conducted
been off for a minimum of 15 minutes
and while the outdoor temperature is ∑ ΔτPH
immediately following the final cooling between 64 °F and 66 °F, monitor the FCC ( Lab) = N HL
1
× 100%.
mode test. Configure the controls of the
heat pump to mimic the operating mode
elapsed time of each power-high
interval (DtPH) and the elapsed time of ∑ ( ΔτPH + ΔτPL ) EP02JN10.264</MATH>
1
if connected to a building thermostat set the power low interval (DtPH) that
to the COOL mode but whose immediately follows. Continue 3.13.5.4.4 Using the manufacturer-
temperature setpoint is satisfied. monitoring the outdoor temperature. provided T00 and T100, along with lab-
3.13.5.2 If the compressor crankcase Start the data collection at the measured TCC, calculate the expected
heater is not thermostatically controlled, value of FCC. If TCC ≥ T00, then FCC =
EP02JN10.263</MATH>
beginning of a power-high interval—

assign FCC(65 °F) = 100 percent, and elapsed time = 0. If one or more power- 0; if TCC ≤ T100, then FCC = 100 percent;
skip to section 3.13.5.5. high + power-low cycles is completed and if T100 < TCC < T00, then use:
(TCC − T 00 ) (T 00 − TCC )
EP02JN10.262</MATH>
FCC = × (100 − 0 ) % + 0% = × 100

(T100 − T 00 ) (T 00 − T100 )
EP02JN10.261</MATH>
3.13.5.4.5 If FCC(Lab) ≤ FCC + 5 power consumption rate for the interval. installed. a. Calculate the seasonal
percent, then solve the section Record this value as P0H. Assign P0 = energy efficiency ratio, SEER, using Eq.
3.13.5.4.4 equation for TCC = 65 °F and (P0C + P0H)/2. 4.1–1. Evaluate the quantity qc(Tj)/N in
assign the result as being FCC(65 °F). If 3.13.5.6 Calculate P1 = P0 + Eq. 4.1–1 using
FCC(Lab) > FCC + 5 percent, round (FCC(65 °F)/100%) × [(230 V)2/RCC] and
FCC(Lab) to the nearest 5 percent round to the nearest even wattage. ( )= X
qc T j n
increment (e.g., 5, 10, 15, * * * 95
percent) and designate this rounded
Assign P2 = 0.
3.13.5.7 Re-enable the compressor N
(T j ) × Qc (T j ) × Nj
value as FCC(65 °F). crankcase heater so that it may operate Where:
3.13.5.5 At this point in the off- in its normal manner. X(Tj) = the cooling mode load factor for
mode power test, no requirements are temperature bin j, dimensionless,
4. Calculations of Seasonal Performance
placed on the ambient conditions Q̇c(Tj) = space cooling capacity of the test
Descriptors
within the indoor and outdoor test unit when operating at outdoor
rooms. The room conditions are allowed * * * * * temperature Tj, Btu/h, and
to change for the duration of this 4.1 * * *
particular test. Temporarily turn off the When referenced, evaluate BL(Tj) for nj
power to the outdoor unit and safely cooling using * * * =
disable the compressor crankcase heater * * * Where: N
to prevent it from consuming any Q̇ck(95) = the space cooling capacity
determined from the A or A2 Test, fractional bin hours for the cooling
electrical power. Re-energize the
whichever applies, Btu/h. season; the ratio of the number of hours
outdoor unit. 1.1 = sizing factor, dimensionless. during the cooling season when the
3.13.5.5.1 Integrate the power
The temperatures 95 ° and 65 ° in the outdoor temperature fell within the
consumption of the heat pump over a 5-
building load equation represent the range represented by bin temperature Tj
minute interval. Calculate the average
selected outdoor design temperature to the total number of hours in the
power consumption rate for the interval.
and the zero-load base temperature, cooling season, dimensionless.
Record this value as P0C.
3.13.5.5.2 Configure the controls of respectively. Assign
the heat pump to mimic the operating * * * * *
mode if connected to a building 4.1.1 SEER calculations for an air nj
EP02JN10.273</MATH>
thermostat set to the HEAT mode but conditioner or heat pump having a N
whose temperature setpoint is satisfied. single-speed compressor that was tested
3.13.5.5.3 Integrate the power with a fixed-speed indoor fan installed, using the fractional bin hours listed in
consumption of the heat pump over a 5- a constant-air-volume-rate indoor fan Table 16. Calculate the space cooling
minute interval. Calculate the average installed, or with no indoor fan capacity at outdoor temperature Tj using
EP02JN10.272</MATH>
Q c ( 95 ) − Q c ( 82 )
( )
Q c T j = Q c ( 82 ) +
95 − 82
( )
× T j − 82 .
EP02JN10.271</MATH>
Determine Q̇c(82) from the B Test, Calculate the cooling mode load factor
Q̇c(95), from the A Test, and evaluate using
both in accordance with section 3.3.
EP02JN10.270</MATH>
( ) ( )
⎧ BL T j Q c T j ⎫
⎪ ⎪
( )
X Tj =⎨ or ⎬ , whichever is less.
EP02JN10.269</MATH>
⎪ 1 ⎪
⎩ ⎭
Use Eq. 4.1–2 to calculate the building Ėc(Tj) = the electrical power consumption of are the same quantities as used for
load, BL(Tj). the test unit when operating at outdoor calculating EP02JN10.268</MATH>
temperature Tj, Btu/h, and

b. Evaluate the quantity ec(Tj)/N in Eq.
4.1–1 using
PLFf = the part load factor for temperature bin
j, dimensionless. ( ).
qc T j
( ) = X (T j ) ⋅ Ec (T j ) × n j
The quantities X(Tj) and N
EP02JN10.267</MATH>
ec T j
nj Calculate the electrical power
N PLF j N
consumption at outdoor temperature Tj
Where: N using
EP02JN10.266</MATH>
E ( 95 ) − E c ( 82 )
( )
E c T j = E c ( 82 ) + c
95 − 82
(
× T j − 82 . )
EP02JN10.265</MATH>
Determine Ėc (82) from the B Test, Ėc 10.2.4 of ASHRAE Standard 116–95 (RA 05) specified in section 3.3. Refer to section
(95) from the A Test, and evaluate both (incorporated by reference, see § 430.3). 3.2.2.1 and Table 4 for additional
in accordance with section 3.3. * * * * * information on the four referenced
Calculate the part load factor using 4.1.5 SEER calculations for an air laboratory tests.
conditioner or heat pump having a b. Determine the cooling mode cyclic
( )
PLF j = 1 − CDc ⋅ ⎡⎣1 − X T j ⎤⎦ single indoor unit with multiple degradation
sections
coefficient, CcD, as per

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6–2–10 Wednesday

Vol. 75 No. 105 June 2, 2010

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Contents Federal Register

Wednesday, June 2, 2010

Agency for International Development Community Development Financial Institutions Fund

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See National Institute of Standards and Technology Committee, 30804–30805

NOTICES Federal Crop Insurance Corporation

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Forest Service Internal Revenue Service

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Homeland Security Department Labor Department

Housing and Urban Development Department Land Management Bureau

National Archives and Records Administration Patent and Trademark Office

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NOTICES Six-Month Post-Exit Focus Interview of Former VHA

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Rules and Regulations Federal Register

Wednesday, June 2, 2010

Elna Luopa, Senior Corporate Analyst, added that reference to paragraph

minimum vectoring altitudes. Without 70105a(h)(i), 70115.

determining whether you have a by the American Board of

‘‘otoscopic inspection.’’ This addition otolaryngologist, the evidence would be

6 National Research Council (NRC): Committee on

16 Like the proposed rule, final listing 102.11A

do not usually obtain significant such provisions. Sections 205(a), appendix 1.

currently and fully licensed or registered as maximum ability to discriminate words,

1. An average air conduction hearing and Budget. As required by the

proposed rule, by stating only that bargaining agreement is silent on the

Federalism Significantly Affect Energy Supply,

800–877–8339.] an issue, to make such findings and

prohibitions listed under ESA section 9 injures fish or wildlife by significantly

Protective/ Methods of take authorization

Protective/ Methods of take authorization

Riverine or estuarine bed restoration N N Y N

BILLING CODE 3510–22–C

Proposed Rules Federal Register

Wednesday, June 2, 2010

dual engine shutdown, could also result

policies. Any such differences are

TABLE 1—SERVICE BULLETINS

CL–600–2B16 (CL–604) airplanes ......................................................................................................... 604–24–021 ........... July 13, 2009.

MCAI specifies to inspect only airplanes

Aviation Administration, published the

DEPARTMENT OF TRANSPORTATION about/office_org/headquarters_offices/ Group. Persons interested in being

Management System Office (see established body of technical

comment. If you fax, hand deliver, or

compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’

unbound format, no larger than 81⁄2 by

Federal Government and Indian tribes. unimpeded passage in accordance with

understanding this proposed rule so that under Executive Order 13045,

coincides with the comment period Insurance Program)

screen, filers should include their full

possession, transportation, exportation, Existence on Federal Highway 82 in Otero County,

Notices Federal Register

Wednesday, June 2, 2010

Administration and Standards Division, affected by the information collection

for the proper performance of the and vote on recommended projects.

USAID’s Implementation and Alexandria, VA 22313–1450; by re-align organization quality control

Estimated Estimated Estimated