The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-53, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests within the United States.

On March 25, 2011, we published in theFederal Register(76 FR 16700-16703, Docket No. APHIS-2010-0101) a proposal1 to amend the regulations by allowing French beans and runner beans from the Republic of Kenya to be imported into the United States if they are cut, shredded, or split and inspected for quarantine pests, and if certain other requirements are met.

We solicited comments concerning our proposal for 60 days ending May 24, 2011. We received two comments by that date. They were from a State department of agriculture and a member of the general public.

One commenter stated opposition to the importation of French and runner beans from Kenya without raising any issues related to the pest risk analysis or proposed rule.

The other commenter recommended that shipments of French and runner beans from Kenya not be permitted entry into the commenter's State until the shipping protocol has had sufficient time to demonstrate the effectiveness of the proposed mitigation measures.

The pest risk analysis we prepared for this action, which includes a qualitative, pathway-initiated pest risk assessment and a risk management document, not only identifies 10 quarantine pests that could potentially accompany shipments of fresh French and runner beans from Kenya, but also identifies mitigation measures that must be completed before these commodities can be safely imported into the United States. The cutting or shredding and splitting of the bean described in the proposed rule will expose and allow detection of internal feeders, thereby mitigating the risk of the quarantine pests being introduced into the United States via the importation of this commodity. As we receive imports from the program, we will continue to evaluate the effectiveness of the program.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

This final rule has been has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

Kenya produced an average of about 37,000 metric tons (MT) of French beans per year between 2004 and 2009, of which it exported an average of about 34,000 MT, primarily to the European Union (EU). The EU provides a well-established market, and it is unlikely that there would be a large diversion of French bean exports by Kenya from this market to the United States.

To examine potential effects of the rule for U.S. small entities, we model three levels of French bean exports to the United States from Kenya, of increasing magnitude: The amount that Kenya expects to export to the United States (800 MT), and amounts equal to 5 percent and 10 percent of Kenya's average annual exports worldwide, 2004-2009 (1,750 MT and 3,500 MT). The largest assumed level is equivalent to 1.3 percent of average annual consumption by the United States during this same period.

Yearly French bean imports from Kenya of 3,500 MT are estimated to result in a price decline of $12.35 per MT, or less than 1 cent per pound in the wholesale price of green beans, and a fall in U.S. production of 1,838 MT. Consumption is estimated to increase by 1,660 MT. Producer welfare could decline by $2.84 million and consumer welfare could increase by $3.25 million, yielding an annual net welfare gain of about $410,000.

While most U.S. green bean producers are small entities, the annual decrease in producer welfare per small entity for the 3,500 MT import scenario isestimated to be only about $64, or about 0.7 percent of average annual sales by small entities. The dollar decrease in welfare for most small fresh bean producers would be even smaller, given that the majority planted less than an acre in green beans in 2007, while the average area planted in green beans by small-entity producers was 2.4 acres. Also, effects are likely to be smaller than indicated, to the extent that fresh French bean imports from Kenya would displace fresh bean imports from other countries.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule allows French beans and runner beans to be imported into the United States from the Republic of Kenya. State and local laws and regulations regarding French beans and runner beans imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0373.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we are amending 7 CFR part 319 as follows:

Background

On September 29, 2003, FSIS proposed to amend the definitions and standards for the official U.S. classes of poultry (68 FR 55902). Before publishing the 2003 proposed rule, the Agency had reviewed the poultry class definitions with USDA's Agricultural Marketing Service (AMS) Poultry Programs, and both agencies discussed the issue with members of the poultry industry and others knowledgeable about poultry genetics and breeding. After examining current poultry production methods and reviewing thepoultry classes defined in 9 CFR 381.170, FSIS and AMS concluded that a number of the poultry class definitions do not adequately reflect current poultry characteristics or industry practices. Therefore, FSIS, in consultation with AMS, determined that the poultry class definitions needed to be revised to more accurately and clearly describe poultry being marketed to consumers and to ensure that the labels for poultry products are truthful and not misleading. FSIS consulted with AMS during this rulemaking because AMS incorporates FSIS' regulatory poultry class standards into its U.S. Classes, Standards, and Grades for Poultry (AMS 70.200et seq.).

In the 2003 proposed rule, in addition to proposing to lower the age definitions for 6 classes of poultry, FSIS requested comments on the merit of establishing ready-to-cook (RTC)1 carcass weights or maximums for poultry classes. The proposed classes were primarily based on the age and sex of the bird.

After FSIS published the 2003 proposed rule, AMS provided the Agency with new data that affected the proposed “roaster” class definition. These data, which were collected from the segment of the industry that routinely produces “roasters,” suggested that a “roaster” class definition should include a RTC carcass weight. The data also suggested that FSIS should change the proposed weeks of age in the “roaster” class definition. Therefore, on July 13, 2009, FSIS issued a supplemental notice of proposed rulemaking to provide new information on and to re-propose the definition and standard for the “roaster” or “roasting chicken” (74 FR 33374).

In the preamble to the 2009 supplemental proposed rule, FSIS explained that, on the basis of the new AMS data, the Agency had tentatively concluded that a “roaster” or “roasting chicken” should be defined as a chicken between 8 and 12 weeks of age. The Agency noted that most of the comments submitted on the 2003 proposed “roaster” class definition supported use of this age range for roasters (74 FR 33375).

In the 2009 supplemental proposal, the Agency also explained that it had tentatively concluded that a “roaster” or “roasting chicken” should be defined as a chicken with an RTC carcass weight of 5 pounds or more, based on survey information from AMS. The Agency stated that including the RTC carcass weight for this class of poultry would effectively differentiate “roasters” and “broilers”. FSIS also explained that it had tentatively concluded that RTC carcass weight, instead of average live weight, is necessary in the class standard and definition so that FSIS can verify the appropriate use of the term “roaster” or “roasting chicken” on product labels.

FSIS reviewed the other poultry standards with AMS before issuing the 2009 rule and determined that they were still accurate, so the Agency only needed to re-propose the “roaster” definition.

Under section 457(b)(2) of Title 21 of the United States Code, the Secretary of Agriculture is required to consult with the Secretary of Health and Human Services (HHS) and an appropriate advisory committee as provided for in 21 U.S.C. 454 before issuing standards of identity for poultry products. Pursuant to this requirement, FSIS consulted with the Food and Drug Administration (FDA), HHS, when developing the proposed rule. FDA determined that there were no existing product standards established by FDA that would be inconsistent with the revised poultry class standards as proposed. FDA has also reviewed this final rule and has determined that there are no existing FDA product standards that are inconsistent with the revised poultry class standards established in this final rule.

Also, pursuant to this requirement, in 2003, FSIS presented the proposed poultry class standards to the FSIS National Advisory Committee on Meat and Poultry Inspection (NACMPI) for consultation to ensure that there is no inconsistency between Federal and State standards. Comments submitted by NACMPI and FSIS' response are discussed below.

FSIS received 9 comment letters in response to the 2003 proposed rule and 6 comment letters in response to the 2009 supplemental proposed rule on the “roaster” class definition. Comments were submitted by trade associations that represent poultry processors, poultry processors, a non-profit organization that advocates humane treatment of farm animals, and 2 individuals.

After carefully analyzing the comments, FSIS has decided to adopt, with some changes, the poultry class definitions that it proposed in 2003 and the “roaster” class definition that it proposed in 2009.

The following is a summary of the comments submitted in response to the 2003 proposed rule and comments submitted in response to the 2009 supplemental proposed rule and FSIS' responses.

Comment:One trade association supported the 2003 proposed rule and stated that they had no objections to the proposed changes for the age definitions, proposed changes to the class definitions, deletion of the word “usually” from the age classifications, proposed changes to the game hen classes, and other proposed editorial changes.

Response:FSIS agrees with the comment.

Comment:In response to the 2003 proposed rule, FSIS received comments from the industry that suggested that FSIS adopt a “roaster” class definition that includes both an age range between 9 and 12 weeks at the time of slaughter and an average live flock weight of 7.75 to 8 pounds. The comments stated that a “roaster” class definition that includes this age range at the time of slaughter and a minimum average flock weight will provide reasonable parameters for companies that specially produce large, young “meat-type” birds.

Response:While FSIS agrees that the “roaster” class definition should include both an age range and weight requirements, the Agency does not agree that the weight should be based on the minimum average flock weight. Using RTC weight more accurately reflects the actual weight of the carcass that a consumer is purchasing. This weight is verifiable by the inspector at the processing site. The inspector cannot verify the flock weight. The flock weight is an average of a large number of birds rather than by individual bird. The variability in a flock weight may be large and not as accurate.

After consideration of the comments, and of the information that AMS obtained from “roaster” producers, FSIS has decided to adopt a “roaster” class definition that reflects AMS' recommendation to define a “roaster” as a chicken between 8 and 12 weeks of age and with a RTC carcass weight of 5 pounds or more. AMS' recommendationis based on the results of a survey of the segment of the industry that produces “roasters,” and reflects data on target weights for birds produced from 8 of the 13 “roaster” suppliers. FSIS and AMS both agree that a definition that includes RTC carcass weight rather than average live flock weight is necessary for FSIS to verify that the labeling of chickens identified as “roasters” is truthful and not misleading. This definition also more accurately reflects the characteristics of poultry labeled as “roasters.”

Comment:Several comments from trade associations and poultry processors were concerned that the 2003 proposed “roaster” age definition of less than 12 weeks with no minimum RTC carcass weight would allow large “broilers” to be classified as roasters because of the overlap in the proposed age definition for the “broiler” class (less than 10 weeks of age) and the proposed age definition for “roaster” class (less than 12 weeks of age).

One comment from a poultry processor asserted that relying only on age requirements and other proposed criteria, such as characteristics of the breastbone cartilage, to define certain poultry classes, particularly the “roaster” chicken class, might cause confusion among industry and FSIS inspection program personnel. The comment stated that some establishments and FSIS inspection personnel may conclude that birds less than 12 weeks of age can be classified as either a “broiler” or a “roaster.” The comment recommended that FSIS allow the “roaster” class to be a marketing term that may include young immature poultry from the “broiler” class, as long as specified weight requirements are met.

Response:As noted above, the roaster class definition in this final rule includes both an age range of 8 to 12 weeks at the time of slaughter and a RTC carcass weight of 5 pounds or more. A broiler is defined by an age of less than 10 weeks with no specified minimum RTC carcass weight. Although there is some overlap in the age definition for “broiler” and “roasters,” the higher age limit for the “roaster” class combined with the minimum RTC carcass weight provides a way to clearly distinguish a “broiler” from a “roaster.”

Comment:Several comments from poultry processors and an individual recommended that FSIS remove age from the definition of the “roaster” class and define “roaster” based solely on RTC carcass weight instead. According to the comments, a “roaster” class definition that includes the age of the bird is not relevant or meaningful to consumers. The comments asserted that defining the “roaster” class by weight alone is sufficient to enable the consumer to identify the product without being misled.

Response:FSIS has determined that the definition needs to include the age range along with a minimum RTC carcass weight to ensure that only young birds are labeled as “roasters.” Because production practices and housing technology have changed, the birds come to market weight much quicker than in the past. Therefore, it is important to inform consumers that “roasters” are young birds, not the more mature birds that consumers were accustomed to buying in the past. This new roaster definition was requested by the poultry industry and supported by industry comments because a definition that uses both the age and weight information is more likely to provide clarity for industry and consumers.

Most of the comments submitted on the 2003 proposal supported the use of this age range, which is consistent with the age of “roasters” in the market today.

Comment:Comments from a trade association and a poultry processor recommended that instead of a 5-pound RTC carcass weight definition for the “roaster” class, FSIS should adopt a minimum 5.5-pound RTC carcass weight as the bird exits post-chilling in the slaughter/evisceration process. According to the comment, such a definition will more accurately reflect the weight range of chickens that are marketed as “roasters” and “roasting chickens” and will maintain a distinction between “roasters” and “broilers” that are also being grown to heavier weights. Another comment suggested a “roaster” class weight definition that would include a 5.5-pound RTC carcass weight for a carcass without giblets at post chill and a 6-pound minimum RTC carcass weight for a carcass packaged with giblets.

Response:As noted above, information that AMS obtained from “roaster” producers supports a RTC carcass weight of 5 pounds or more. Birds that have the age and other characteristics of the roaster class and that have a RTC carcass weight of 5.5 pounds would be classified as “roasters.” RTC weight has not been based on the weight of the carcass and the weight of the carcass plus giblets.

There was no rationale provided with the comment to support the need for 2 different weight minimums for this class of poultry. FSIS does not believe it is necessary to stipulate a minimum weight based on the carcass plus giblets.

Comment:One comment from a trade association had no opinion on whether FSIS should include a requirement for RTC carcass weights for certain poultry classes but stated that if FSIS were to adopt market-ready weights, the weight designations should not include any added solutions that are used to prepare birds for the cooking process.

Response:The minimum RTC carcass weight for the roaster class applies to carcasses that do not contain added solutions.

Comment:One comment from a poultry processor submitted in 2003 suggested that FSIS delay the issuance of any final rule to update the poultry classes to conduct the appropriate studies in consultation with consumers and the industry to craft a classification standard that accurately reflects what a “roaster” is. Another comment from a poultry processor stated that FSIS should consult with a wide cross section of buyers, consumers, and industry to determine the appropriate RTC carcass weight for the “roaster” class.

Response:As noted above, after FSIS issued the 2003 proposed rule, AMS collected new data from the segment of the industry that routinely produces “roasters.” The agencies used these data to develop a roaster class definition that more accurately reflects the characteristics of chickens marketed as “roasters” and requested comments on the revised definition through a supplemental proposed rule.

Comment:Comments from a trade association and a poultry processor stated that FSIS should not require that chickens that meet the definition for the “roaster” class be labeled as “roaster” or “roasting chicken.” The comments suggested that FSIS give companies the option of labeling these birds as “young chickens.” According to the comment, the term “young chicken” will not mislead consumers because it does not imply the product is somehow superior to a “roaster” or “roasting chicken.”

Another comment from a poultry processor asserted that designation of an RTC chicken carcass as a “broiler,” “fryer,” “roaster” or “roasting chicken” is not meaningful to consumers. The comment stated that consumers would likely select the RTC chicken carcass based on their needs in relation to the meal being prepared, e.g., a family of four will likely require a larger RTC chicken carcass than a single adult when preparing the same meal, regardless of how the bird is labeled. The comment said that the similarities between the “broiler” or “fryer” and “roaster” or “roasting chicken” class are such that the standards are almostinterchangeable. The comment was concerned that under the proposed definitions, a “broiler” could be deemed misbranded simply because the RTC carcass weight infringes on the “roaster” class. The comment stated that FSIS should not require that chickens be labeled as a “broiler,” “fryer,” “roaster,” or “roasting chicken,” and that companies should have the option to label these poultry as “young chickens.”

Response:Under the existing regulations, “broilers,” and “roasters” are permitted to be labeled as “young chickens.” 9 CFR 381.117(b) provides that “[t]he name of the product required to be shown on labels for fresh or frozen raw whole carcasses of poultry shall be in either of the following forms: The name of the kind (such as chicken, turkey, or duck) preceded by the qualifying term “young” or “mature” or “old,” whichever is appropriate; or the appropriate class name as described in 9 CFR 381.170(a).” This final rule does not change requirements for product names in 9 CFR 381.117(b). Therefore, “broilers” and “roasters” may continue to be labeled by their class name or as “young chickens.”

Comment:One comment submitted by a trade association that represents turkey processors objected to FSIS' proposal to lower the age for the young turkey class from under 8 months to less than 6 months. The comment stated that lowering the age for young turkeys by 2 months would place an undue burden on several companies that process young turkeys while providing little or no benefit to the consumer. According to the comment, if FSIS were to adopt the proposed reduction in age for the young turkey class, many establishments that process young turkeys would be dangerously close to exceeding or simply would not meet the new age requirements.

Response:After considering the comment, FSIS has decided to not lower the age definition for the young turkey class as proposed. Therefore, this final rule retains the existing “young turkey” age definition of less than 8 months.

To lower the definition to less than 6 months may adversely affect establishments that are labeling such birds as “young turkeys” under the existing regulations.

After considering the comments and recommendations from AMS, FSIS has concluded that a “young turkey” age definition of “less than 8 months” continues to accurately represent industry practices and accurately reflects the characteristics of these birds.

Comment:One commenter from a trade association noted that the terms “broiler” and “fryer” are permitted to be used interchangeably under the “broiler” or “fryer” chicken class definition. The commenter asserted that the use of both terms for one class of poultry might be confusing to consumers. The commenter suggested that FSIS either define the terms “broiler” and “fryer” in the regulations or amend the regulations to establish separate classes for “broiler” and “fryer” chickens, or for any other poultry identified by these terms.

Response:“Broiler” and “fryer” are regional terms for the same type of bird and are thus used interchangeably. The comment did not submit data to indicate that classifying chickens with certain characteristics as “broilers” or “fryers” is misleading to consumers. Therefore, FSIS is not establishing separate definitions for “broiler” and “fryer” chickens in this final rule.

Comment:One comment from a trade association stated that the term “hen” as used in the “Rock Cornish game hen” or “Cornish game hen” class may be misleading because the term hen implies that these birds are female while the definition states that the birds may be of either sex. The comment suggested that FSIS change the name of this poultry class to “Rock Cornish game bird” or “Cornish game bird.”

Another comment from a poultry producer said that the proposed “Cornish hen” definition is inaccurate because it allows industry to call a bird that is not necessarily Cornish, and not necessarily a hen, a “Cornish hen.” The comment suggested that FSIS add a definition for “poussin” to describe the next youngest bird than the “Cornish hen” if the Agency decides to keep the term Cornish hen. The comment suggested that USDA review the literature produced by the North American Meat Processors Association (NAMP) as it applies to usage of the term “poussin.” According to the commenter, because USDA is attempting to have its regulations reflect usage in the poultry industry, it must consider not just the production level, but also the market.

Response:FSIS disagrees that the terms “Rock Cornish game hen” or “Cornish game hen” are misleading to consumers and that the Agency should change the name of the class to “Rock Cornish game bird” or “Cornish game bird.” The existing terms for this poultry class, which provides for the use of the term “hen” for young immature chickens of either sex, has been in place since FSIS established this poultry class definition. The term “hen” can be used for immature chickens of either sex because birds of this class are sexually immature. FSIS is not aware of any data to support that consumers are misled with the reference to “hen” in these terms. Changing the name of the class is likely to spur confusion.

FSIS also disagrees that the proposed “Cornish hen” definition is inaccurate because it allows industry to call a bird that is not necessarily Cornish, and not necessarily a hen, a “Cornish hen.” The existing standards in FSIS' regulations do specify that a Cornish chicken be the progeny of a Cornish chicken crossed with another breed of chicken. However, FSIS continues to believe that it is doubtful that any purebred Cornish lines currently exist in commercial chicken production today and, therefore, the birds cannot be reliably distinguished on the basis of progeny.

FSIS also disagrees that it should add a new poultry class that would define poussin. The poultry classes in 9 CFR 381.170 represent poultry that are typically marketed to consumers and are more broadly used than the standards for poussin in NAMP's Poultry Buyers Guide.

Comment:A comment from an organization that advocates humane handling of farm animals and an individual stated that the lower age requirements proposed for certain poultry classes sanction and promote abnormally rapid growth in poultry, which compromises animal welfare and public health. An organization that advocates the humane treatment of farm animals recommended that FSIS adopt a “no action” alternative because the proposed amendments are largely unnecessary. According to the commenter, of the 6 definitions proposed for revision, 4 are completely accurate as currently written.

Response:FSIS disagrees that the lower age requirements proposed for the poultry classes compromise animal welfare and public health. The lower age requirements reflect the advancements in breeding and husbandry that have occurred since the poultry classes were established over 40 years ago. These advances have generally shortened the period of time required for birds to attain market-ready weights. FSIS is revising the poultry class standard to better reflect these changes.

Comment:A poultry processor requested that FSIS use this rulemakingto replace the term “squab” in its regulations with “pigeon.” The commenter stated that squab should be used to describe a young pigeon in labeling but not to define inspection amenability.

Response:This comment is outside the scope of this rule; however, the FY 2001 Agriculture, Rural Development, Food and Drug Administration and Related Agencies Appropriations Act (the 2001 Appropriations Act), signed by the President on October 28, 2000, provided inspection amenability for ratites and squabs. The statute specifically states that “squabs” are to be inspected under the Poultry Products Inspection Act (PPIA). The 2001 Appropriations Act does not mention pigeons. Subsequently, based on that statute, FSIS conducted rulemaking to include squab in the definition ofPoultryin 9 CFR 381.1.

Comment:One trade association comment stated that the proposed changes in nomenclature and weight ranges for the poultry classes may bring about price changes that may benefit the industry and retailers but may not result in benefits to consumers.

Response:FSIS does not believe the proposed changes will result in a significant change in the market price of poultry because the rule will not have much effect on consumer behavior. The rule may benefit suppliers because lowering the age limit means the suppliers will not have to keep the birds for as long as they have under current class standards for all classes of poultry whose age limits are lowered by this final rule. However, despite the potential increase in the supply of roasters, consumer demand will determine how many more roasters will be sold. The Agency does not think that the consumers will buy more roasters simply because the proposed rule lowers the age limit.

As noted above, in 2003, FSIS presented the proposed poultry class standards to the National Advisory Committee on Meat and Poultry Inspection (NACMPI). NACMPI reviewed the proposed poultry class standards and suggested that FSIS look at poultry production practices for non-traditional raising of poultry, such as organic and free-range. NACMPI recommended that FSIS not exclude any sector of the marketplace from using the standards in labeling because they use different production practices and that FSIS determine whether the non-traditional raising of poultry meets the standards in the proposed rule.

Further, the NACMPI asked if the poultry products imported have their own standard and who would know the ages on the imported poultry product.

In response to NACMPI's request, FSIS consulted with representatives from AMS's National Organic Program (NOP) to determine whether the revisions to the poultry class standards would affect the way that organic poultry are classified and labeled. NOP responded that although it does not have extensive market information on the age and size of organic poultry to fully evaluate the implications of these new classes, it does not anticipate that organic poultry growers will have difficulty raising birds with characteristics of the new class definitions. AMS/NOP contacted a poultry producer (who sells under the broiler or fryer class) to get its perspective on whether such a change would present an issue for the 25,000 organic birds they raise for the market. The producer stated that, although organic birds do take longer to get to market size because of slower weight gain (e.g., about 30% less for organic birds which take about 49 days to attain market weight), the producer does not anticipate a problem marketing “broilers” or “fryers” as defined in this rule.

In reference to NACMPI's comment on foreign trade, FSIS ensures that inspection systems in countries that export meat, poultry, and processed egg products to the United States are equivalent to those in the United States and that products from these countries are accurately labeled in accordance with domestic requirements. Also, in terms of a trade perspective, the amount of product that USDA could market under these standards of identity is very small in terms of imported product to the United States.

In this final rule, FSIS is lowering the age definitions for 5 classes of poultry: “Rock Cornish game hen” or “Cornish game hen” from 5 to 6 weeks to less than 5 weeks (§ 381.170(a)(1)(i)); “broiler” or “fryer” from under 13 weeks to less than 10 weeks (381.170(a)(1)(ii)); “roaster” or “roasting chicken” from 3 to 5 months to 8 to 12 weeks of age (381.170(a)(1)(iii)); capon from under 8 months to less than 4 months (381.170(a)(1)(iv)); and fryer-roaster turkey from under 16 weeks to less than 12 weeks (381.170(a)(2)(i)). The Agency decided not to lower the age definition for a 6th class of poultry—young turkey—as proposed (seeRESPONSE TO COMMENTS). Therefore, the age definition for a young turkey remains at less than 8 months of age. In addition to lowering the age definition for the “roaster” class, this final rule also defines a “roaster” based on a RTC carcass weight of 5 pounds or more. Consistent with the proposal, the Agency is deleting the word “usually” from the age designation descriptions in all of the poultry class standards so that these age designations will be clear and enforceable.

Based on the uniform compliance date regulations, January 1, 2014 is the effective date for this final rule. January 1, 2014 is the uniform compliance date for new food labeling regulations that are issued between January 1, 2011 and December 31, 2012 (75 FR 71344, November 23, 2010.)

In the 2003 proposed rule at 68 FR 55902, the Agency solicited comments on what age designations would be appropriate for poultry identified as “young geese,” “mature geese,” “young guineas” and “old guineas” but the Agency did not receive any comments in response.

Also, as proposed at 68 FR 55903, in addition to the changes made to the poultry class standards, this rule will delete the term “fully matured” from the yearling turkey class definition and change the name of the broiler duckling or fryer duckling class to “duckling.” Birds in this class of ducks are labeled and marketed as “ducklings” without the prefixes “broiler” or “fryer.” FSIS is changing the name of the roaster duckling class to “roaster duck.” Roaster ducks are currently labeled and marketed as “ducks” rather that “ducklings.”

In addition, the class definitions have been edited for clarity, consistency, and uniformity. For example, the class names used within the regulatory text will be placed in quotation marks to make the format of the poultry class standards regulation consistent with the other regulations that prescribe standards of identity for poultry products. References to specific numbers of weeks or months will be preceded by the words “less than” or “more than” rather than “under” or “in excess of” to improve the clarity of the regulations.

This final rule has been determined to be “significant” and was reviewed by the Office of Management and Budget under Executive Order 12866.

This regulation may have some benefit for the industry, but it will not have a significant effect on the prices of poultry. Lowering the age limit for all the five classes of poultry will benefit the suppliers because they can sell birds at younger ages. In the case of roasters, some of the chickens that are broilers under the current standards will be qualified as roasters and can be sold at a higher per-pound price.2 However, FSIS does not know how many chickens will be re-classified because there is no Agency data or market data on ages of the chickens in the market. There is also a demand constraint on how many of the re-classified chickens will be actually sold and generate the revenue. Therefore, it is very difficult to quantify the benefits to the industry.

Another possible effect on the industry is associated with possible changes to labels because of changes in classification of poultry. The “Uniform Compliance Date for Food Labeling Regulations” (75 FR 71344) allows establishments to incorporate multiple label redesigns required by multiple Federal rules into one modification during 2-year increments. If the establishments combine other labeling changes required by other Federal regulations with the labeling changes under this rule, they can spread out the cost of changing other labels.

On the demand side, this rule will not have much effect on consumers. Although some broilers will be qualified as roasters and become more expensive, consumers who want to buy broilers will still buy broilers. There is no empirical evidence of consumer preference of one class of chicken (roaster or broiler) over the other. In addition, empirical evidence shows that price elasticity for chicken in the United States is quite inelastic.3 Because the rule will not have a significant effect on the demand side and is not imposing additional cost to the suppliers, there will not be significant change in prices.

The FSIS Administrator certifies that, for the purposes of the Regulatory Flexibility Act (5 U.S.C. 601-602,) the final rule will not have a significant impact on a substantial number of small entities. The advancements in growing practices and technologies that have occurred since the original poultry class standards were developed are prevalent throughout the industry, regardless of the size of the entity. This rule merely updates existing regulations to reflect current poultry characteristics and production practices used throughout the entire industry. In fact, by lowering the age definition for five classes of poultry, this rule benefits the small and very small establishments as well as the large ones. It is voluntary if the establishments want to sell the large broilers as roasters; and if they decide to do so, the perceived benefits must outweigh the associated cost, such as labeling changes.

The Agency has considered two alternatives to this rulemaking. The first alternative is no rulemaking and to keep the old definitions. However, these definitions fail to take into account current poultry production practices, which have generally shortened the period of time required for poultry to gain market-ready weights. The second option is to use a weight range to define turkey and roaster classes. However, for turkeys, the Agency found such a class system would not accurately distinguish birds that differ significantly in relevant characteristics. As for roasters, information also suggests that classifying by weight alone is not an accepted practice industry-wide. In any case, both the alternatives would apply to the entire industry, and neither would have a differential effect on the small and very small establishments.

FSIS has reviewed this rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and has determined that the information collection related to labeling has been approved by OMB under OMB Control Number 0583-0092.

FSIS does not anticipate many changes of labels due to changes in classification of poultry because many establishments are already using terms that meet the classifications established by this rule. In addition, the natural turnover of labels for poultry produced in a federally inspected facility will allow poultry establishments to incorporate label redesigns into one modification in 2-year increments based on the Uniform Compliance Date for Food Labeling Regulations (75 FR 71344). This rule established January 1, 2014, as the uniform compliance date for new meat and poultry product labeling regulations that are issued between January 1, 2011, and December 31, 2012. Hence, there will be basically no additional paperwork burden for establishments.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status (Not all prohibited bases apply to all programs).

Persons with disabilities who require alternative means for communication of program information (Braille, large print, and audiotape) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).

To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.

FSIS will announce this final rule online through the FSIS Web page located athttp://www.fsis.usda.gov/regulations_&_policies/Interim_&_Final_Rules/index.asp.FSIS will also make copies of thisFederal Registerpublication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,Federal Registernotices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available athttp://www.fsis.usda.gov/News_&_Events/Email_Subscription/.Options range from recalls to export information to regulations, directives and notices. Customers can add ordelete subscriptions themselves, and have the option to password protect their accounts.

For the reasons stated in the preamble, FSIS amends 9 CFR part 381 as follows:

Section 19(b)(2) of the Federal Reserve Act (12 U.S.C. 461(b)(2)) requires each depository institution to maintain reserves against its transaction accounts and nonpersonal time deposits, as prescribed by Board regulations, for the purpose of implementing monetary policy. Section 11(a)(2) of the Federal Reserve Act (12 U.S.C. 248(a)(2)) authorizes the Board to require reports of liabilities and assets from depository institutions to enable the Board to conduct monetary policy. The Board's actions with respect to each of these provisions are discussed in turn below.

Pursuant to section 19(b) of the Federal Reserve Act (Act), transaction account balances maintained at each depository institution are subject to reserve requirement ratios of zero, three, or ten percent. Section 19(b)(11)(A) of the Act (12 U.S.C. 461(b)(11)(A)) provides that a zero percent reserve requirement shall apply at each depository institution to total reservable liabilities that do not exceed a certain amount, known as the reserve requirement exemption amount. Section 19(b)(11)(B) provides that, before December 31 of each year, the Board shall issue a regulation adjusting the reserve requirement exemption amount for the next calendar year if total reservable liabilities held at all depository institutions increase from one year to the next. No adjustment is made to the reserve requirement exemption amount if total reservable liabilities held at all depository institutions should decrease during the applicable time period. The Act requires the percentage increase in the reserve requirement exemption amount to be 80 percent of the increase in total reservable liabilities of all depository institutions over the one-year period that ends on the June 30 prior to the adjustment.

Total reservable liabilities of all depository institutions increased about 9.4 percent (from $4,928 billion to $5,392 billion) between June 30, 2010, and June 30, 2011. Accordingly, the Board is amending Regulation D to set the reserve requirement exemption amount for 2012 at $11.5 million, an increase of $0.8 million from its level in 2011.1

Pursuant to Section 19(b)(2) of the Act (12 U.S.C. 461(b)(2)), transaction account balances maintained at each depository institution over the reserve requirement exemption amount and up to a certain amount, known as the low reserve tranche, are subject to a three percent reserve requirement. Transaction account balances over the low reserve tranche are subject to a ten percent reserve requirement. Section 19(b)(2) also provides that, before December 31 of each year, the Board shall issue a regulation adjusting the low reserve tranche for the next calendar year. The Act requires the adjustment in the low reserve tranche to be 80 percent of the percentage increase or decrease in total transaction accounts of all depository institutions over the one-year period that ends on the June 30 prior to the adjustment.

Net transaction accounts of all depository institutions increased 25.9 percent (from $944 billion to $1,188 billion) between June 30, 2010 and June 30, 2011. Accordingly, the Board is amending Regulation D to increase the low reserve tranche for net transaction accounts by $12.2 million, from $58.8 million for 2011 to $71.0 million for 2012.

For depository institutions that file deposit reports weekly, the new low reserve tranche and reserve requirement exemption amount will be effective for the fourteen-day reserve computation period beginning Tuesday, November 29, 2011, and for the corresponding fourteen-day reserve maintenance period beginning Thursday, December 29, 2011. For depository institutions that report quarterly, the new low reserve tranche and reserve requirement exemption amount will be effective for the seven-day reserve computation period beginning Tuesday, December 20, 2011, and for the corresponding seven-day reserve maintenance period beginning Thursday, January 19, 2012.

Section 11(b)(2) of the Federal Reserve Act authorizes the Board to require depository institutions to file reports of their liabilities and assets as the Board may determine to be necessary or desirable to enable it to discharge its responsibility to monitor and control the monetary and credit aggregates. The Board screens depository institutions each year and assigns them to one of four deposit reporting panels (weekly reporters, quarterly reporters, annual reporters, or nonreporters). The panel assignment for annual reporters is effective in June of the screening year; the panel assignment for weekly and quarterly reporters is effective in September of the screening year.

In order to ease reporting burden, the Board permits smaller depository institutions to submit deposit reports less frequently than larger depository institutions. The Board permits depository institutions with net transaction accounts above the reserve requirement exemption amount but total transaction accounts, savings deposits, and small time deposits below a specified level (the “nonexempt deposit cutoff”) to report deposit data quarterly. Depository institutions with net transaction accounts above the reserve requirement exemption amount but with total transaction accounts, savings deposits, and small time deposits above the nonexempt deposit cutoff are required to report deposit data weekly. The Board requires certain large depository institutions to report weekly regardless of the level of their net transaction accounts if the depository institution's total transaction accounts, savings deposits, and small time deposits exceeds a specified level (the “reduced reporting limit”). The nonexempt deposit cutoff level and the reduced reporting limit are adjusted annually, by an amount equal to 80 percent of the increase, if any, in total transaction accounts, savings deposits, and small time deposits of all depository institutions over the one-year period that ends on the June 30 prior to the adjustment.

From June 30, 2010 to June 30, 2011, total transaction accounts, savings deposits, and small time deposits at all depository institutions increased 9.3 percent (from $7,473 billion to $8,171 billion). Accordingly, the Board is increasing the nonexempt deposit cutoff level by $18.9 million to $ 271.5 million for 2012 (up from $252.6 million in 2011). The Board is also increasing the reduced reporting limit by $106 millionto $1.521 billion in 2012 (up from $1.415 billion for 2011).2

Beginning in 2012, the boundaries of the four deposit reporting panels will be defined as follows. Those depository institutions with net transaction accounts over $11.5 million (the reserve requirement exemption amount) or with total transaction accounts, savings deposits, and small time deposits greater than or equal to $1.521 billion (the reduced reporting limit) are subject to detailed reporting, and must file a Report of Transaction Accounts, Other Deposits and Vault Cash (FR 2900 report) either weekly or quarterly. Of this group, those with total transaction accounts, savings deposits, and small time deposits greater than or equal to $271.5 million (the nonexempt deposit cutoff level) are required to file the FR 2900 report each week, while those with total transaction accounts, savings deposits, and small time deposits less than $271.5 million are required to file the FR 2900 report each quarter. Those depository institutions with net transaction accounts less than or equal to $11.5 million (the reserve requirement exemption amount) and with total transaction accounts, savings deposits, and small time deposits less than $1.521 billion (the reduced reporting limit) are eligible for reduced reporting, and must either file a deposit report annually or not at all. Of this group, those with total deposits greater than $11.5 million (but with total transaction accounts, savings deposits, and small time deposits less than $1.521 billion) are required to file the Annual Report of Deposits and Reservable Liabilities (FR 2910a) report annually, while those with total deposits less than or equal to $11.5 million are not required to file a deposit report. A depository institution that adjusts reported values on its FR 2910a report in order to qualify for reduced reporting will be shifted to an FR 2900 reporting panel.

Notice and Regulatory Flexibility Act.The provisions of 5 U.S.C. 553(b) relating to notice of proposed rulemaking have not been followed in connection with the adoption of these amendments. The amendments involve expected, ministerial adjustments prescribed by statute and by the Board's policy concerning reporting practices. The adjustments in the reserve requirement exemption amount, the low reserve tranche, the nonexempt deposit cutoff level, and the reduced reporting limit serve to reduce regulatory burdens on depository institutions. Accordingly, the Board finds good cause for determining, and so determines, that notice in accordance with 5 U.S.C. 553(b) is unnecessary. Consequently, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601, do not apply to these amendments.

For the reasons set forth in the preamble, the Board is amending 12 CFR part 204 as follows:

Generally, the United States imposes regular and special tonnage taxes, and a duty of a specified amount per ton, called “light money,” on all foreign vessels which enter U.S. ports (46 U.S.C. 60302-60303). However, vessels of a foreign country may be exempted from the payment of special tonnage taxes and light money upon presentation of satisfactory proof that the government of that foreign country does not impose discriminatory or countervailing duties to the disadvantage of the United States (46 U.S.C. 60304).

Section 4.22, U.S. Customs and Border Protection (CBP) regulations (19 CFR 4.22), lists those countries whose vessels have been found to be exempt from the payment of any higher tonnage duties than are applicable to vessels of the United States and from the payment of light money. The authority to amend this section of the CBP regulations has been delegated to the Chief, Trade and Commercial Regulations Branch, Regulations and Rulings, Office of International Trade.

By letter dated August 22, 2011, the Department of State informed CBP that the government of the Cook Islands does not impose discriminating or countervailing duties on vessels owned by citizens of the United States. Accordingly, the Department of State recommended that the Cook Islands be added to the list of countries whose vessels are exempt from special tonnage taxes and light money in ports of the United States, effective August 22, 2011.

On the basis of the above-mentioned information from the Department of State regarding the absence of discriminating or countervailing duties imposed by the government of the Cook Islands on vessels owned by citizens of the United States, CBP considers vessels of the Cook Islands to be exempt from the payment of special tonnage tax and light money, effective August 22, 2011. The CBP regulations are amended accordingly.

Because this amendment merely implements a statutory requirement and confers a benefit upon the public, CBP has determined that notice and public procedure are unnecessary pursuant to section 553(b)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). Further, for the same reasons, good cause exists for dispensing with a delayed effective date under section 553(d)(3) of the APA (5 U.S.C. 553(d)(3)).

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) do not apply. This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

This document is being issued by CBP in accordance with § 0.1(b)(1) of the CBP regulations (19 CFR 0.1(b)(1)).

For the reasons set forth above, part 4 of Title 19 of the Code of Federal Regulations (19 CFR part 4), is amended as set forth below:

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to CBP in developing these regulations will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. SeeADDRESSESabove for information on how to submit comments.

On April 12, 2006, the United States and Peru (the “Parties”) signed the United States-Peru Trade Promotion Agreement (“PTPA” or “Agreement”), and on June 24 and June 25, 2007, the Parties signed a protocol amending the Agreement. The stated objectives of the PTPA include: strengthening the special bonds of friendship and cooperation between the Parties and promoting regional economic integration; promoting broad-based economic development in order to reduce poverty and generate opportunities for sustainable economic alternatives to drug-crop production; creating new employment opportunities and improving labor conditions and living standards in the Parties; establishing clear and mutually advantageous rules governing trade between the Parties; ensuring a predictable legal and commercial framework for business and investment; fostering creativity and innovation and promoting trade in the innovative sections of the Parties' economies; promoting transparency and preventing and combating corruption, including bribery, in international trade and investment; protecting, enhancing, and enforcing basic workers' rights, and strengthening cooperation on labor matters; implementing the Agreement in a manner consistent with environmental protection and conservation, promoting sustainable development, and strengthening cooperation on environmental matters; and contributing to hemispheric integration and providing an impetus toward establishing the Free Trade Area of the Americas.

The provisions of the PTPA were adopted by the United States with the enactment on December 14, 2007, of the United States-Peru Trade Promotion Agreement Implementation Act (the “Act”), Public Law 110-138, 121 Stat. 1455 (19 U.S.C. 3805 note). Section 209 of the Act requires that regulations be prescribed as necessary to implement the provisions of the PTPA.

On January 16, 2009, the President signed Proclamation 8341 to implement the provisions of the PTPA. The Proclamation, which was published in theFederal Registeron January 22, 2009 (74 FR 4105), modified the Harmonized Tariff Schedule of the United States (“HTSUS”) as set forth in Annexes I and II of Publication 4058 of the U.S. International Trade Commission. The modifications to the HTSUS included the addition of new General Note 32, incorporating the relevant PTPA rules of origin as set forth in the Act, and the insertion throughout the HTSUS of the preferential duty rates applicable to individual products under the PTPA where the special program indicator “PE” appears in parenthesis in the “Special” rate of duty subcolumn. The modifications to the HTSUS also included a new Subchapter XVII to Chapter 99 to provide for temporary tariff-rate quotas and applicable safeguards implemented by the PTPA. After the Proclamation was signed, CBP issued instructions to the field and the public implementing the Agreement by allowing the trade to receive the benefits under the PTPA effective on or after February 1, 2009.

U.S. Customs and Border Protection (“CBP”) is responsible for administering the provisions of the PTPA and the Act that relate to the importation of goods into the United States from Peru. Those customs-related PTPA provisions which require implementation through regulation include certain tariff and non-tariff provisions within Chapter One (Initial Provisions and General Definitions), Chapter Two (National Treatment and Market Access for Goods), Chapter Three (Textiles and Apparel), Chapter Four (Rules of Origin and Origin Procedures), and Chapter Five (Customs Administration and Trade Facilities).

Certain general definitions set forth in Chapter One of the PTPA have been incorporated into the PTPA implementing regulations. These regulations also implement Article 2.6 (Goods Re-entered After Repair or Alteration) of the PTPA.

Chapter Three of the PTPA sets forth provisions relating to trade in textile and apparel goods between Peru and the United States. The provisions within Chapter Three that require regulatory action by CBP are Articles 3.2 (Customs Cooperation and Verification of Origin), Article 3.3 (Rules of Origin, Origin Procedures, and Related Matters), and Article 3.5 (Definitions).

Chapter Four of the PTPA sets forth the rules for determining whether an imported good is an originating good of a Party and, as such, is therefore eligible for preferential tariff (duty-free or reduced duty) treatment under the PTPA as specified in the Agreement and the HTSUS. The basic rules of origin in Section A of Chapter Four are set forth in General Note 32, HTSUS.

Under Article 4.1 of Chapter Four, originating goods may be grouped in three broad categories: (1) Goods that are wholly obtained or produced entirely in the territory of one or both of the Parties; (2) goods that are produced entirely in the territory of one or both of the Parties and that satisfy the product-specific rules of origin in PTPA Annex 4.1 (change in tariff classification requirement and/or regional value content requirement) or Annex 3-A (textile and apparel specific rules of origin) and all other applicable requirements of Chapter Four; and (3) goods that are produced entirely in the territory of one or both of the Parties exclusively from originating materials. Article 4.2 sets forth the methods for calculating the regional value content of a good. Articles 4.3 and 4.4 set forth the rules for determining the value of materials for purposes of calculating the regional value content of a good and applying thede minimiscriterion. Article 4.5 provides that production that takes place in the territory of one or both of the Parties may be accumulated such that, provided other requirements are met, the resulting good is considered originating. Article 4.6 provides ade minimiscriterion. The remaining Articles within Section A of Chapter Four consist of additional sub-rules, applicable to the originating good concept, involving fungible goods and materials, accessories, spare parts, and tools, sets, packaging materials and containers for retail sale, packing materials and containers for shipment,indirect materials, transit and transshipment, and consultation and modifications. All Articles within Section A are reflected in the PTPA implementing regulations, except for Article 4.14 (Consultation and Modifications).

Section B of Chapter Four sets forth procedures that apply under the PTPA in regard to claims for preferential tariff treatment. Specifically, Section B includes provisions concerning claims for preferential tariff treatment, recordkeeping requirements, verification of preference claims, obligations relating to importations and exportations, common guidelines, implementation, and definitions of terms used within the context of the rules of origin. All Articles within Section B, except for Articles 4.21 (Common Guidelines) and 4.22 (Implementation) are reflected in these implementing regulations.

Chapter Five sets forth operational provisions related to customs administration and trade facilitation under the PTPA. Article 5.9, concerning the general application of penalties to PTPA transactions, is the only provision within Chapter Five that is reflected in the PTPA implementing regulations.

In order to provide transparency and facilitate their use, the majority of the PTPA implementing regulations set forth in this document have been included within Subpart Q in Part 10 of the CBP regulations (19 CFR part 10). However, in those cases in which PTPA implementation is more appropriate in the context of an existing regulatory provision, the PTPA regulatory text has been incorporated in an existing Part within the CBP regulations. In addition, this document sets forth several cross-references and other consequential changes to existing regulatory provisions to clarify the relationship between those existing provisions and the new PTPA implementing regulations. The regulatory changes are discussed below in the order in which they appear in this document.

Section 10.31(f) concerns temporary importations under bond. It is amended by adding references to certain goods originating in Peru for which, like goods originating in Canada, Mexico, Singapore, Chile, Morocco, El Salvador, Guatemala, Honduras, Nicaragua, the Dominican Republic, Costa Rica, Bahrain, or Oman, no bond or other security will be required when imported temporarily for prescribed uses. The provisions of PTPA Article 2.5 (Temporary Admission of Goods) are already reflected in existing temporary importation bond or other provisions contained in Part 10 of the CBP regulations and in Chapter 98 of the HTSUS.

Section 10.901 outlines the scope of Subpart Q, Part 10 of the CBP regulations. This section also clarifies that, except where the context otherwise requires, the requirements contained in Subpart Q, Part 10 are in addition to general administrative and enforcement provisions set forth elsewhere in the CBP regulations. Thus, for example, the specific merchandise entry requirements contained in Subpart Q, Part 10 are in addition to the basic entry requirements contained in Parts 141-143 of the CBP regulations.

Section 10.902 sets forth definitions of common terms used in multiple contexts or places within Subpart Q, Part 10. Although the majority of the definitions in this section are based on definitions contained in Article 1.3 and Annex 1.3 of the PTPA, and § 3 of the Act, other definitions have also been included to clarify the application of the regulatory texts. Additional definitions that apply in a more limited Subpart Q, Part 10 context are set forth elsewhere with the substantive provisions to which they relate.

Section 10.903 sets forth the procedure for claiming PTPA preferential tariff treatment at the time of entry and, as provided in PTPA Article 4.15.1, states that an importer may make a claim for PTPA preferential tariff treatment based on a certification by the importer, exporter, or producer or the importer's knowledge that the good is an originating good. Section 10.903 also provides, consistent with PTPA Article 4.19.4(d), that when an importer has reason to believe that a claim is based on inaccurate information, the importer must correct the claim and pay any duties that may be due.

Section 10.904, which is based on PTPA Articles 4.15 and 4.19.4, requires a U.S. importer, upon request, to submit a copy of the certification of the importer, exporter, or producer if the certification forms the basis for the claim. Section 10.904 specifies the information that must be included on the certification, sets forth the circumstances under which the certification may be prepared by the exporter or producer of the good, and provides that the certification may be used either for a single importation or for multiple importations of identical goods.

Section 10.905 sets forth certain importer obligations regarding the truthfulness of information and documents submitted in support of a claim for preferential tariff treatment. Section 10.906, which is based on PTPA Article 4.16, provides that the certification is not required for certain non-commercial or low-value importations.

Section 10.907 implements PTPA Article 4.17 concerning the maintenance of relevant records regarding the imported good.

Section 10.908, which reflects PTPA Article 4.19.2, authorizes the denial of PTPA tariff benefits if the importer fails to comply with any of the requirements under Subpart Q, Part 10, CBP regulations.

Section 10.909, which implements PTPA Articles 4.20.1 and 4.17.1, sets forth certain obligations of a person who completes and issues a certification for a good exported from the United States to Peru. Paragraphs (a) and (b) of § 10.909, reflecting PTPA Article 4.20.1, require a person who completes such a certification to provide a copy of the certification to CBP upon request and to give prompt notification of any errors in the certification to every person to whom the certification was given. Paragraph (c) of § 10.909 reflects Article 4.17.1, concerning the recordkeeping requirements that apply to a person who completes and issues a certification for a good exported from the United States to Peru.

Sections 10.910 through 10.912 implement PTPA Article 4.19.5 and section 206 of the Act, which allow an importer who did not claim PTPA tariff benefits on a qualifying good at the time of importation to apply for a refund of any excess duties at any time within one year after the date of importation. Such a claim may be made even if liquidation of the entry would otherwise be considered final under other provisions of law.

Sections 10.913 through 10.925 provide the implementing regulations regarding the rules of origin provisions of General Note 32, HTSUS, Chapter Four and Article 3.3 of the PTPA, and section 203 of the Act.

Section 10.913 sets forth terms that are defined for purposes of the rules of origin.

Section 10.914 sets forth the basic rules of origin established in Article 4.1 of the PTPA, section 203(b) of the Act, and General Note 32(b), HTSUS. The provisions of § 10.914 apply both to the determination of the status of an imported good as an originating good for purposes of preferential tariff treatment and to the determination of the status of a material as an originating material used in a good which is subject to a determination under General Note 32, HTSUS. Section 10.914(a) specifies those goods that are originating goods because they are wholly obtained or produced entirely in the territory of one or both of the Parties.

Section 10.914(b) provides that goods that have been produced entirely in the territory of one or both of the Parties from non-originating materials each of which undergoes an applicable change in tariff classification and satisfies any applicable regional value content or other requirement set forth in General Note 32, HTSUS, are originating goods. Essential to the rules in § 10.914(b) are the specific rules of General Note 32(n), HTSUS, which are incorporated by reference.

Section 10.914(c) provides that goods that have been produced entirely in the territory of one or both of the Parties exclusively from originating materials are originating goods.

Section 10.915 reflects PTPA Article 4.2 concerning the basic rules that apply for purposes of determining whether an imported good satisfies a minimum regional value content (“RVC”) requirement. Section 10.916, reflecting PTPA Articles 4.3 and 4.4, sets forth the rules for determining the value of a material for purposes of calculating the regional value content of a good as well as for purposes of applying thede minimisrules.

Section 10.917, which is derived from PTPA Article 4.5, sets forth the rule by which originating materials from the territory of a Party that are used in the production of a good in the territory of the other Party will be considered to originate in the territory of that other country. In addition, this section also establishes that a good that is produced by one or more producers in the territory of one or both of the Parties is an originating good if the good satisfies all of the applicable requirements of the rules of origin of the PTPA.

Section 10.918, as provided for in PTPA Article 4.6, sets forthde minimisrules for goods that may be considered to qualify as originating goods even though they fail to qualify as originating goods under the rules specified in § 10.594. There are a number of exceptions to thede minimisrule set forth in PTPA Annex 4.6 (Exceptions to Article 4.6) as well as a separate rule for textile and apparel goods.

Section 10.919, as provided for in PTPA Article 4.7, sets forth the rules by which “fungible” goods or materials may be claimed as originating.

Section 10.920, as set forth in PTPA Article 4.8, specifies the conditions under which a good's standard accessories, spare parts, or tools are: (1) Treated as originating goods; and (2) disregarded in determining whether all non-originating materials undergo an applicable change in tariff classification under General Note 32(n), HTSUS.

Section 10.921, which is based on PTPA Articles 3.3.10 and 4.9, provides that, notwithstanding the specific rules of General Note 32(n), HTSUS, goods classifiable as goods put up in sets for retail sale as provided for in General Rule of Interpretation 3, HTSUS, will not qualify as originating goods unless: (1) Each of the goods in the set is an originating good; or (2) the total value of the non-originating goods in the set does not exceed 15 percent of the adjusted value of the set, or 10 percent of the adjusted value of the set in the case of textile or apparel goods.

Sections 10.922 and 10.923, which are derived from PTPA Articles 4.10 and 4.11, respectively, provide that retail packaging materials and packing materials for shipment are to be disregarded with respect to their actual origin in determining whether non-originating materials undergo an applicable change in tariff classification under General Note 32(n), HTSUS. These sections also set forth the treatment of packaging and packing materials for purposes of the regional value content requirement of the note.

Section 10.924, as set forth in PTPA Article 4.12, provides that indirect materials, as defined in § 10.902(m), are considered to be originating materials without regard to where they are produced.

Section 10.925, which is derived from PTPA Article 4.13, sets forth the rule that an originating good loses its originating status and is treated as a non-originating good if, subsequent to production in the territory of one or both of the Parties that qualifies the good as originating, the good: (1) Undergoes production outside the territories of the Parties, other than certain specified minor operations; or (2) does not remain under the control of customs authorities in the territory of a non-Party.

Section 10.926 implements PTPA Article 4.18 which concerns the conduct of verifications to determine whether imported goods are originating goods entitled to PTPA preferential tariff treatment. This section also governs the conduct of verifications directed to producers of materials that are used in the production of a good for which PTPA preferential duty treatment is claimed.

Section 10.927, which reflects PTPA Article 3.2, sets forth the verification and enforcement procedures specifically relating to trade in textile and apparel goods.

Section 10.928 provides the procedures that apply when preferential tariff treatment is denied on the basis of an origin verification conducted under this subpart.

Section 10.929 implements PTPA Article 4.18.5 and § 205(b) of the Act, concerning the denial of preferential tariff treatment in situations in which there is a pattern of conduct by an importer, exporter, or producer of false or unsupported PTPA preference claims.

Section 10.930 concerns the general application of penalties to PTPA transactions and is based on PTPA Article 5.9.

Section 10.931 reflects PTPA Article 4.19.3 and § 205(a)(1) of the Act with regard to an exception to the application of penalties in the case of an importer who promptly and voluntarily makes a corrected claim and pays any duties owing.

Section 10.932 implements PTPA Article 4.20.2 and § 205(a)(2) of the Act,concerning an exception to the application of penalties in the case of a U.S. exporter or producer who promptly and voluntarily provides notification of the making of an incorrect certification with respect to a good exported to Peru.

Section 10.933 sets forth the circumstances under which the making of a corrected claim or certification by an importer or the providing of notification of an incorrect certification by a U.S. exporter or producer will be considered to have been done “promptly and voluntarily”. Corrected claims or certifications that fail to meet these requirements are not excepted from penalties, although the U.S. importer, exporter, or producer making the corrected claim or certification may, depending on the circumstances, qualify for a reduced penalty as a prior disclosure under 19 U.S.C. 1592(c)(4). Section 10.932 also specifies the content of the statement that must accompany each corrected claim or certification.

Section 10.934 implements PTPA Article 2.6 regarding duty-free treatment for goods re-entered after repair or alteration in Peru.

An amendment is made to § 24.23(c), which concerns the merchandise processing fee, to implement § 204 of the Act, providing that the merchandise processing fee is not applicable to goods that qualify as originating goods under the PTPA.

Part 162 contains regulations regarding the inspection and examination of, among other things, imported merchandise. A cross-reference is added to § 162.0, which is the scope section of the part, to refer readers to the additional PTPA records maintenance and examination provisions contained in Subpart Q, Part 10, CBP regulations.

A conforming amendment is made to § 163.1 to include the maintenance of any documentation that the importer may have in support of a claim for preference under the PTPA as an activity for which records must be maintained. Also, the list of records and information required for the entry of merchandise appearing in the Appendix to Part 163 (commonly known as the (a)(1)(A) list) is also amended to add the records that the importer may have in support of a PTPA claim for preferential tariff treatment.

Part 178 sets forth the control numbers assigned to information collections of CBP by the Office of Management and Budget, pursuant to the Paperwork Reduction Act of 1995, Pub. L. 104-13. The list contained in § 178.2 is amended to add the information collections used by CBP to determine eligibility for preferential tariff treatment under the PTPA and the Act.

Under the Administrative Procedure Act (“APA”) (5 U.S.C. 553), agencies generally are required to publish a notice of proposed rulemaking in theFederal Registerthat solicits public comment on the proposed regulatory amendments, consider public comments in deciding on the content of the final amendments, and publish the final amendments at least 30 days prior to their effective date. However, section 553(a)(1) of the APA provides that the standard prior notice and comment procedures do not apply to an agency rulemaking to the extent that it involves a foreign affairs function of the United States. CBP has determined that these interim regulations involve a foreign affairs function of the United States because they implement preferential tariff treatment and related provisions of the PTPA. Therefore, the rulemaking requirements under the APA do not apply and this interim rule will be effective upon publication. However, CBP is soliciting comments in this interim rule and will consider all comments received before issuing a final rule.

CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 of September 30, 1993 (58 FR 51735, October 4, 1993), because it pertains to a foreign affairs function of the United States and implements an international agreement, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866. Because a notice of proposed rulemaking is not required under section 553(b) of the APA for the reasons described above, the provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601et seq.), do not apply to this rulemaking. Accordingly, this interim rule is not subject to the regulatory analysis requirements or other requirements of 5 U.S.C. 603 and 604.

The collections of information contained in these regulations are under the review of the Office of Management and Budget in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0117. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number.

The collections of information in these regulations are in §§ 10.903 and 10.904. This information is required in connection with claims for preferential tariff treatment under the PTPA and the Act and will be used by CBP to determine eligibility for tariff preference under the PTPA and the Act. The likely respondents are business organizations including importers, exporters and manufacturers.

Estimated total annual reporting burden:800 hours.

Estimated average annual burden per respondent:.2 hours.

Estimated number of respondents:4,000.

Estimated annual frequency of responses:1.

Comments concerning the collections of information and the accuracy of the estimated annual burden, and suggestions for reducing that burden, should be directed to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Trade and Commercial Regulations Branch, Regulations and Rulings, U.S. Customs and Border Protection, 799 9th Street NW., 5th Floor, Washington, DC 20229-1179.

This document is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions.

Accordingly, chapter I of title 19, Code of Federal Regulations (19 CFR chapter I), is amended as set forth below.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Public Law 111-203, (Dodd-Frank) amended the Sarbanes-Oxley whistleblower provision, 18 U.S.C. 1514A. The regulatory revisions described herein reflect these statutory amendments and also seek to clarify and improve OSHA's procedures for handling Sarbanes-Oxley whistleblower claims. To the extent possible within the bounds of applicable statutory language, these revised regulations are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA, including the Surface Transportation Assistance Act of 1982 (STAA), 29 CFR part 1978; the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA), 29 CFR part 1982; the Consumer Product Safety Improvement Act of 2008 (CPSIA), 29 CFR part 1983; and the Employee Protection Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended, 29 CFR part 24.

Responsibility for receiving and investigating complaints under Sarbanes-Oxley has been delegated to the Assistant Secretary of Labor for Occupational Safety and Health (Secretary of Labor's Order No. 4-2010 (Sept. 2, 2010), 75 FR 55355 (Sept. 10, 2010)). Hearings on determinations by the Assistant Secretary are conducted bythe Office of Administrative Law Judges, and appeals from decisions by administrative law judges (ALJs) are decided by the Administrative Review Board (ARB) (Secretary of Labor's Order No. 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010)).

Dodd-Frank, enacted on July 21, 2010, amended the Sarbanes-Oxley whistleblower provision to make several substantive changes. First, section 922(b) of Dodd-Frank added protection for employees from retaliation by nationally recognized statistical rating organizations (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c)) or their officers, employees, contractors, subcontractors, and agents.1 Second, section 922(c) of Dodd-Frank extended the statutory filing period for retaliation complaints under Sarbanes-Oxley from 90 to 180 days after the date on which the violation occurs or after the date on which the employee became aware of the violation. Section 922(c) of Dodd-Frank also provided parties with a right to a jury trial in district court actions brought under Sarbanes-Oxley's “kickout” provision, 18 U.S.C. 1514A(b)(1)(B), which provides that, if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity forde novoreview in the appropriate district court of the United States, which will have jurisdiction over such action without regard to the amount in controversy. Third, section 922(c) amended Sarbanes-Oxley to state that the rights and remedies provided for in 18 U.S.C. 1514A may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement, and to provide that no predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.

In addition, section 929A of Dodd-Frank clarified that companies covered by the Sarbanes-Oxley whistleblower provision include any company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company. As explained inJohnsonv.Siemens Technologies, Inc.,ARB No. 08-032, 2011 WL 1247202, at *11 (Mar. 31, 2011), section 929A merely clarified that subsidiaries and affiliates are covered under the Sarbanes-Oxley whistleblower provision. Section 929A applies to all cases currently pending before the Secretary.

Dodd-Frank left the remaining requirements of the Sarbanes-Oxley whistleblower provision unchanged. Sarbanes-Oxley continues to provide that proceedings under the Act will be governed by the rules and procedures and burdens of proof of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”), 49 U.S.C. 42121(b). Sarbanes-Oxley continues to authorize an award to a prevailing employee of make-whole relief, including reinstatement with the same seniority status that the employee would have had but for the retaliation, back pay with interest, and compensation for any special damages sustained, including litigation costs, expert witness fees and reasonable attorney's fees.See18 U.S.C. 1514A(c)(2).

The regulatory provisions in this part are being revised to reflect the 2010 Dodd-Frank statutory amendments, to improve the procedures for handling Sarbanes-Oxley whistleblower cases, and to make the Sarbanes-Oxley whistleblower regulations more consistent with the regulations that OSHA has promulgated for the administration of other whistleblower programs to the extent possible within the bounds of the applicable statutory language.

These regulatory revisions make several non-substantive changes in terminology. First, cases under the whistleblower provision of Sarbanes-Oxley will now be referred to as actions alleging “retaliation” rather than “discrimination.” This change is not intended to have substantive effect. It simply reflects the fact that claims brought under the whistleblower provisions are prototypical retaliation claims. A retaliation claim is a specific type of discrimination claim that focuses on the actions taken as a result of an employee's protected activity rather than as a result of an employee's characteristics (e.g.,race, gender, or religion).

Second, these rules previously referred to persons named in Sarbanes-Oxley whistleblower complaints as “named persons,” but in the revised regulations they will be referred to as “respondents.” Third, rather than referring to an employer's “unfavorable personnel action,” these revisions use the term “adverse action.” Again, these changes are not intended to have any substantive impact on the handling of Sarbanes-Oxley whistleblower cases. The revisions simply reflect a preference for more conventional terminology. These updated terms are already used in OSHA's procedural rules for handling whistleblower complaints under several other statutes, including STAA, 29 CFR part 1978; NTSSA and FRSA, 29 CFR part 1982; CPSIA, 29 CFR part 1983; and the Employee Protection Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended, 29 CFR part 24. The minor changes here create consistency with these other programs and reduce possible confusion.

This section describes the purpose of the regulations implementing Sarbanes-Oxley and provides an overview of the procedures covered by these regulations. This section has been revised to reflect the 2010 statutory amendments to Sarbanes-Oxley.

This section includes general definitions applicable to Sarbanes-Oxley's whistleblower provision. The definition of the term “Act” has been revised to incorporate the 2010 Dodd-Frank statutory amendments within that definition. Also, consistent with the recently promulgated interim final rules under STAA, 29 CFR part 1978; NTSSA and FRSA, 29 CFR part 1982; and CPSIA, 29 CFR part 1983, a new definition of “business days” is beingadded at paragraph 1980.101(c) of these rules to clarify that the term means days other than Saturdays, Sundays and Federal holidays.

The 2010 statutory amendments to Sarbanes-Oxley define “nationally recognized statistical rating organization” by reference to the definition in the Securities Exchange Act of 1934, codified at 15 U.S.C. 78c(a)(62), and that definition has been included here. Similarly, the definition of “company” has been revised to reflect that “company” under the Sarbanes-Oxley whistleblower provision includes any subsidiary or affiliate whose financial information is included in the consolidated financial statements of a company. Thus under these regulations “company” means any company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or any company required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company.

These regulatory revisions also replace the term “company representative” with the term “covered person,” which is defined in subparagraph 1980.101(f) as “any company, including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or any nationally recognized statistical rating organization, or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization.” In addition, as noted above, these rules have replaced the definition of “named person” with a definition for “respondent” at paragraph 1980.101(k), and define the term “respondent” as “the person named in the complaint who is alleged to have violated the Act.” The term “employee” in 1980.101(g) has also been revised consistent with these changes, and the term “person” in 1980.101(j) has been revised to explicitly include “companies” in the definition of “person.” The order of the terms in this section has been changed as necessary to permit the inclusion and substitution of the terms described above. These changes in terminology were needed to reflect the addition of nationally recognized statistical rating organizations and their officers, employees, contractors, subcontractors, and agents to the list of potential respondents in whistleblower cases under Sarbanes-Oxley. These changes in terminology also continue to reflect that Sarbanes-Oxley's statutory provisions identify individuals, as well as the employer, as potentially liable for retaliation. OSHA continues to anticipate, however, that in most cases the covered person and the respondent likely will be the complainant's employer. The definitions in this section also continue to reflect OSHA's longstanding position that the statute protects both employees of publicly traded companies and employees of contractors, subcontractors, and agents of publicly traded companies.SeeProcedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, Final Rule, 69 FR 52104, 52106 (Aug. 24, 2004); Brief for the Secretary of Labor as Amicus Curiae in Support of Plaintiff-Appellees,Lawsonv.FMR, LLC,No. 10-2240 (1st Cir. 2011).

This section describes the activities that are protected under Sarbanes-Oxley and the conduct that is prohibited in response to any protected activities. The term “covered person” has been substituted for “company or company representative” throughout this section, and other minor changes have been made to make this section consistent with OSHA's procedural rules implementing other whistleblower provisions. It should be noted that it is the Department's longstanding position that complaints to an individual member of Congress under this section are protected. The individual member need not be conducting an investigation or on a Committee conducting an investigation. The critical focus is on whether the employee reported conduct that he or she reasonably believed constituted a violation of one of the enumerated laws or regulations.

This section explains the requirement for filing a retaliation complaint under Sarbanes-Oxley. The terminology used in this section has been revised to reflect the updated terminology described above. The 2010 statutory amendments changed the statute of limitations for complaints under the Act from 90 to 180 days. Now, to be timely, a complaint must be filed within 180 days of when the alleged violation occurs, or after the date on which the employee became aware of the violation. This section of the regulations has been updated to reflect that statutory change. UnderDelaware State Collegev.Ricks,449 U.S. 250, 258 (1980), the time of the alleged violation is considered to be when the retaliatory decision has been both made and communicated to the complainant.

Additionally, section 1980.103(b) has been amended to change the requirement that whistleblower complaints to OSHA under Sarbanes-Oxley “must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” Consistent with OSHA's procedural rules under other whistleblower statutes, complaints filed under Sarbanes-Oxley need not be in any particular form. They may be either oral or in writing. When a complaint is made orally, OSHA will reduce the complaint to writing. If a complainant is not able to file the complaint in English, the complaint may be filed in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.

These changes are consistent with decisions of the ARB, which have permitted oral complaints under the environmental statutes.See, e.g., Robertsv.Rivas Environmental Consultants, Inc.,1996-CER-1, 1997 WL 578330, at *3 n.6 (ARB Sept. 17, 1997) (complainant's oral statement to an OSHA investigator, and the subsequent preparation of an internal memorandum by that investigator summarizing the oral complaint, satisfies the “in writing” requirement of CERCLA, 42 U.S.C. 9610(b), and the Department's accompanying regulations in 29 CFR part 24);Darteyv.Zack Co. of Chicago,No. 1982-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y of Labor Apr. 25, 1983) (adopting administrative law judge's findings that complainant's filing of a complaint to the wrong DOL office did not render the filing invalid and that the agency's memorandum of the complaint satisfied the “in writing” requirement of the Energy Reorganization Act (“ERA”) and the Department's accompanying regulations in 29 CFR part 24). Moreover, these changes are consistent with OSHA's longstanding practice of accepting oral complaints filed under Section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 7 of the International Safe Container Act of 1977, 46 U.S.C. 80507; and STAA, 49 U.S.C. 31105. This change also accords with the Supreme Court's decision inKastenv.Saint-Gobain Performance Plastics Corp.,in which the Court held that the anti-retaliation provision of the Fair Labor Standards Act, which prohibits employers from discharging or otherwise discriminating against an employee because such employee has “filed any complaint,” protects employees' oral complaints of violations of the Fair Labor Standards Act. 563 U.S. __, 131 S.Ct. 1325 (2011).

OSHA believes that the changes in this section complement the ARB's decision inSylvesterv.Parexel International, LLC.Noting that OSHA does not require complaints under Sarbanes-Oxley to be in any form and that under 29 CFR 1980.104(b) OSHA has a duty, if appropriate, to interview the complainant to supplement the complaint, the ARB held that the Federal court pleading standards established inBell Atlantic Corp.v.Twombly,550 U.S. 544 (2007) andAshcroftv.Iqbal,556 U.S. __, 129 S.Ct. 1937 (2009) do not apply to Sarbanes-Oxley whistleblower complaints filed with OSHA.Sylvesterv.Parexel Int'l, Inc.,ARB Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011).

This section describes the procedures that apply to the investigation of Sarbanes-Oxley complaints. The terminology used in this section has been updated and the content of each paragraph has been reorganized to be consistent with OSHA's investigation procedures under other whistleblower statutes, to the extent such parallel procedures are consistent with the Act.

Paragraph (a) of this section outlines the procedures for notifying the parties and the Securities and Exchange Commission of the complaint and notifying respondents of their rights under these regulations. Paragraph (a) also provides that the respondent will receive a copy of the complaint, redacted if necessary in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Former paragraphs (b) through (d) described the statutory burdens of proof applicable to Sarbanes-Oxley whistleblower complaints. The discussion of these burdens has been consolidated without substantive change in a single paragraph 1980.104(e), consistent with the approach taken in OSHA's procedural rules under other whistleblower statutes. Paragraph (b) now describes the procedures for the respondent to submit its response to the complaint, which were formerly contained in 1980.104(c). Paragraph (c) now addresses disclosure to the complainant of respondent's submissions to the agency that are responsive to the complaint. The revised paragraph (c) newly specifies that throughout the investigation the agency will provide to the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint, and the complainant will have an opportunity to respond to those submissions. Before providing such materials to the complainant, the agency will redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The agency expects that sharing information with complainants in accordance with this new provision will enhance OSHA's ability to conduct full and fair investigations and permit the Assistant Secretary to more thoroughly assess defenses raised by respondents. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (f), formerly 1980.104(e), describes the procedures the Assistant Secretary will follow prior to the issuance of findings and a preliminary order when the Assistant Secretary has reasonable cause to believe that a violation has occurred. This paragraph has been amended to provide that the complainant will be sent a copy of the materials that OSHA must send to the respondent before OSHA issues a preliminary order of reinstatement should the agency have reasonable cause to believe that such an order is appropriate. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.

As noted above, former paragraphs (b) through (d), which describe the statutory burdens of proof applicable to Sarbanes-Oxley complaints, have been consolidated in paragraph (e). The Sarbanes-Oxley whistleblower provision mandates that an action under the Act is governed by the burdens of proof set forth in AIR21, 49 U.S.C. 42121(b). The statute requires that a complainant make an initialprima facieshowing that protected activity was “a contributing factor” in the adverse action alleged in the complaint,i.e.,that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. Complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action.

If the complainant does not make theprima facieshowing, the investigation must be discontinued and the complaint dismissed.See Trimmerv.U.S. Dep't of Labor,174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same as that under Sarbanes-Oxley, serves a “gatekeeping function” that “stem[s] frivolous complaints”). Even in cases where the complainant successfully makes aprima facieshowing, the investigation must be discontinued if the employer “demonstrates, by clear and convincing evidence,” that it would have taken the same adverse action in the absence of the protected activity. 49 U.S.C. 42121(b)(2)(B)(ii). Thus, OSHA must dismiss a complaint under Sarbanes-Oxley and not investigate (or cease investigating) if either: (1) The complainant fails to meet theprima facieshowing that protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.

Assuming that an investigation proceeds beyond the gatekeeping phase, the statutory burdens of proof require an employee to prove that the alleged protected activity was a “contributing factor” to the alleged adverse action. If the employee proves that the alleged protected activity was a contributing factor to the adverse action, the employer, to escape liability, must prove by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”Maranov.Dep't of Justice,2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). In proving that protected activity was a contributing factor in the adverse action, “a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,” because a complainant alternatively can prevail by showing that the respondent's “reason, while true, is only one of the reasons for its conduct,” and that another reason was the complainant's protected activity.See Klopfensteinv.PCC Flow Techs.Holdings, Inc.,ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (citingRachidv.Jack in the Box, Inc.,376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision),aff'd sub nom. Klopfensteinv.Admin. Review Bd., U.S. Dep't of Labor,402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).

Sarbanes-Oxley's burdens of proof do not address the evidentiary standard that applies to a complainant's proof that protected activity was a contributing factor in an adverse action. Sarbanes-Oxley simply provides that the Secretary may find a violation only “if the complainant demonstrates” that protected activity was a contributing factor in the alleged adverse action.See49 U.S.C. 42121(b)(2)(B)(iii). It is the Secretary's position that the complainant must prove by a “preponderance of the evidence” that his or her protected activity contributed to the adverse action; otherwise the burden never shifts to the employer to establish its defense by “clear and convincing evidence.”See, e.g., Allenv.Admin. Review Bd.,514 F.3d 468, 475 n.1 (5th Cir. 2008) (“The term ‘demonstrate' [under 42121(b)(2)(B)(iii)] means to prove by a preponderance of the evidence.”). Once the complainant establishes that the protected activity was a contributing factor in the adverse action, the employer can escape liability only by proving by clear and convincing evidence that it would have reached the same decision even in the absence of the prohibited rationale. The “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard.

As provided in the previous procedures for handling retaliation complaints under Sarbanes-Oxley, this section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, in accordance with the statute, 18 U.S.C. 1514A(c), the Assistant Secretary will order “all relief necessary to make the employee whole,” including preliminary reinstatement; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney's fees.

In ordering interest on back pay under Sarbanes-Oxley, the Secretary has determined that, instead of computing the interest due by compounding quarterly the Internal Revenue Service (“IRS”) interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points, the Secretary will instead compound such interest daily. This is a change from the way interest has been calculated.See Doylev.Hydro Nuclear Services,ARB Nos. 99-041, 99-042, and 99-012, 2000 WL 694384, at *15-16 (ARB May 17, 2000). The Secretary believes that daily compounding of interest better achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board.See Jackson Hospital Corp.v.United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO-CLC,356 NLRB No. 8, 2010 WL 4318371, at *3-4 (Oct. 22, 2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

As in the previous procedures for handling retaliation complaints under Sarbanes-Oxley, the findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, preliminary order, also advise the respondent of the right to request attorney's fees not exceeding $1,000 regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.

Finally, the statement that reinstatement would not be appropriate where the respondent establishes that the complainant is a security risk has been removed from 1980.105(a)(1). OSHA believes that the determination of whether reinstatement is inappropriate in a given case is best made on the basis of the facts of each case and the relevant case law, and thus it is not necessary in these procedural rules to define the circumstances in which reinstatement is not a proper remedy. This amendment also makes these procedural regulations consistent with the recent interim final rules under STAA, NTSSA, FRSA, and CPSIA, which do not contain this statement.

In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he received prior to his termination, but not actually return to work. Such “economic reinstatement” is akin to an order of front pay and is frequently employed in cases arising under Section 105(c) of the Federal Mine Safety and Health Act of 1977.See, e.g., Sec'y of Labor on behalf of Yorkv.BR&D Enters., Inc.,23 FMSHRC 697, 2001 WL 1806020, at *1 (June 26, 2001). Front pay has been recognized as a possible remedy in cases under Sarbanes-Oxley and other whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate.Hagmanv.Washington Mutual Bank, Inc.,2005-SOX-73, 2006 WL 6105301, *32 (Dec. 19, 2006) (noting that while reinstatement is the “preferred and presumptive remedy” under Sarbanes-Oxley, “[f]ront pay may be awarded as a substitute when reinstatement is inappropriate due to: (1) An employee's medical condition that is causally related to her employer's retaliatory action * * *; (2) manifest hostility between the parties * * *; (3) the fact that claimant's former position no longer exists * * *; or (4) the fact that employer is no longer in business at the time of the decision”);see, e.g., Hobbyv.Georgia Power Co.,ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001),aff'd sub nom. Hobbyv.U.S. Dept. of Labor,No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front pay may be available in lieu of reinstatement but ordering reinstatement);Brownv.Lockheed Martin Corp.,2008-SOX-49, 2010 WL 2054426, at *55-56 (Jan. 15, 2010) (same). Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of Sarbanes-Oxley. When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. An employer does not have a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA'ssatisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the employee continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication.

As under the prior procedures for whistleblower complaints under Sarbanes-Oxley, to be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, Washington, DC 20001, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or email communication is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case.See Shiraniv.Calvert Cliffs Nuclear Power Plant, Inc.,ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). Paragraph (b) has been revised to note that a respondent's motion to stay OSHA's preliminary order of reinstatement will be granted only based on exceptional circumstances. This revision clarifies that a stay is only available in “exceptional circumstances,” because the Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under Sarbanes-Oxley would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief,i.e.,irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties and the public favors a stay.

As under the prior procedures for whistleblower complaints under Sarbanes-Oxley, this section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 29 CFR part 18 subpart A. It specifically allows hearings to be consolidated if both the complainant and respondent object to the findings and/or order of the Assistant Secretary. This section continues to provide that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conductedde novo,on the record. Administrative law judges continue to have broad discretion to limit discovery where necessary to expedite the hearing. As under the prior procedures, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The administrative law judge may exclude evidence that is immaterial, irrelevant, or unduly repetitious. Minor revisions have been made throughout this section to update the terminology used.

As noted in this section, 1980.108(a)(1) previously, the Assistant Secretary, at his or her discretion, may participate as a party oramicus curiaeat any time in the administrative proceedings under Sarbanes-Oxley. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate asamicus curiaebefore the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, large numbers of employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary.

Consistent with OSHA's procedural rules under other whistleblower statutes, paragraph (a)(2) has been amended to require the parties to send all documents to each other, in addition to the Assistant Secretary.

Paragraph (b) has been revised to state that “The Securities and Exchange Commission, if interested in a proceeding, may participate asamicus curiaeat any time in the proceeding, at the Commission's discretion.” This revision makes this provision consistent with the analogous provisions in the Secretary's procedural rules under other whistleblower statutes. However, the revision is not intended to materially change the circumstances in which the Securities and Exchange Commission may participate in proceedings under Sarbanes-Oxley. The Securities and Exchange Commission may participate asamicus curiaeat any time in the proceedings.

Revisions have been made to this section to make it consistent with OSHA's procedural rules for handling complaints under other whistleblower statutes. This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under Sarbanes-Oxley. Former paragraph (a) has been divided into three paragraphs—(a), (b) and (c). Paragraph (a) now states that a determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. Paragraph (b) now explains that if the complainant has satisfied this burden, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity. A full discussion of the burdens of proof used by the Department of Labor to resolve whistleblower cases under this part is presented above in the discussion of section 1980.104. Paragraph (c) now provides that the Assistant Secretary's determination to dismiss the complaint without an investigation or without a complete investigation pursuant to section 1980.104 is not subject to review. Thus, paragraph (c) of section 1980.109 clarifies that the Assistant Secretary's determinations on whether to proceed with an investigation under Sarbanes-Oxley and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears casesde novoand, therefore, as a generalmatter, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. Paragraph (c) now also clarifies that the ALJ can dispose of a matter without a hearing if the facts and circumstances warrant. The provisions formerly contained in paragraph (b) have been moved to new paragraphs (d)(1) and (2). Paragraph (d)(1) additionally provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The provisions formerly contained in paragraph (c) have been moved to new paragraph (e), which also requires that the ALJ's decision be served on the Assistant Secretary and the Associate Solicitor of the Division of Fair Labor Standards.

As in section 1980.110(a) previously, upon the issuance of the ALJ's decision, the parties have 10 business days within which to petition the ARB for review of that decision. Subsection (b) has been revised to clarify that if no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or email communication is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt.

The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.

This section also provides that based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under Sarbanes-Oxley, which otherwise would be effective, while review is conducted by the ARB. Subsection (b) has been amended to clarify that a stay is only available in “exceptional circumstances,” because the Secretary believes that a stay of an ALJ's preliminary order of reinstatement under Sarbanes-Oxley would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief,i.e.,irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties and the public favors a stay.

Finally, paragraph (d) has been revised to provide that interest on back pay ordered under this section will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

This section provides for the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It also provides for approval of settlements at the investigative and adjudicative stages of the case.

Paragraph (a) has been revised to allow the complainant to notify the Assistant Secretary of his withdrawal orally or in writing. Minor revisions also have been made to this section to make it consistent with the procedural rules under other whistleblower statutes. These minor revisions do not reflect substantive changes in the requirements for withdrawals of complaints, objections or petitions for review, or substantive changes in the requirements for submission and Departmental approval of settlement agreements. Rather, these amendments simply incorporate the procedures that the Department has been using under Sarbanes-Oxley. Paragraph (a) now notes that complainant may not withdraw a complaint after filing objections to an ALJ's order. Paragraph (d)(1) now notes that the Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties.

This section describes the statutory provisions for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought that the ARB submit the record of proceedings to the appropriate court pursuant to the rules of such court. The section has been renumbered for clarity and consistency with OSHA's other whistleblower protection regulations. Paragraph (c) has been revised to clarify that “rules of the court” refers to the Federal Rules of Appellate Procedure and local rules of the relevant Federal court of appeals.

This section describes the Secretary's power under Sarbanes-Oxley to obtain judicial enforcement of orders and the terms of a settlement agreement. It has been amended for consistency with OSHA's other whistleblower programs and clarifies that Federal district courts have authority to grant all appropriate relief in an action to enforce a preliminary order of reinstatement or a final order of the Secretary, including a final order approving a settlement agreement.

While some courts have declined to enforce preliminary orders of reinstatement under Sarbanes-Oxley, the Secretary's consistent position has been that such orders are enforceable in Federal district court.See Solisv.Tenn. Commerce Bancorp, Inc.,No. 10-5602 (6th Cir. 2010) (order granting stay of preliminary injunction);Bechtelv.Competitive Technologies, Inc.,448 F.3d 469 (2d Cir. 2006);Welchv.Cardinal Bankshares Corp.,454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)).

By incorporating the procedures of AIR21, Sarbanes-Oxley authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary under the Act.See18 U.S.C. 1514A(b)(2)(A) (adopting the rules and procedures set forth in AIR21, 49 U.S.C. 42121(b)). The Secretary consistently has interpreted Sarbanes-Oxley to permit her to obtain civil enforcement of preliminary orders of reinstatement.SeeBrief for the Intervenor/Plaintiff-Appellee Secretary of Labor,Solisv.Tenn. Commerce Bancorp, Inc.,No. 10-5602 (6th Cir. 2010); Brief for the Intervenor/Plaintiff-Appellant United States of America,Welchv.Cardinal Bankshares Corp.,No. 06-2295 (4th Cir. Feb. 20, 2008); Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor,Bechtelv.Competitive Technologies, Inc.,448 F.3d 469 (2d Cir. 2006) (No. 05-2402).

Under 49 U.S.C. 42121(b), which provides the procedures applicable to investigations of whistleblower complaints under Sarbanes-Oxley, theSecretary must investigate complaints under the Act and determine whether there is reasonable cause to believe that a violation has occurred. “[I]f the Secretary of Labor concludes that there is a reasonable cause to believe that a violation * * * has occurred, the Secretary shall accompany the Secretary's findings with a preliminary order providing the relief prescribed by paragraph (3)(B),” which includes reinstatement of the complainant to his or her former position. 49 U.S.C. 42121(b)(2)(A) and (b)(3)(B)(ii). The respondent may file objections to the Secretary's preliminary order and request a hearing. However, the filing of such objections “shall not operate to stay any reinstatement remedy contained in the preliminary order.” 49 U.S.C. 42121(b)(2)(A).

Paragraph (5) of 49 U.S.C. 42121(b) provides for judicial enforcement of the Secretary's orders, including preliminary orders of reinstatement. That paragraph states “[w]henever any person has failed to comply with an order issued under paragraph (3), the Secretary of Labor may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages.” 49 U.S.C. 42121(b)(5). Preliminary orders that contain the relief of reinstatement prescribed by paragraph (3)(B) are judicially enforceable orders, issued under paragraph (3). Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor,Solisv.Tenn. Commerce Bancorp, Inc.,No. 10-5602 at 23-25 (6th Cir. 2010).

This analysis is not altered by the fact that paragraph (3) bears the heading “Final Order.”See United Statesv.Buculei,262 F.3d 322, 331 (4th Cir. 2001) (a statute's title cannot limit the plain meaning of its text),cert. denied,535 U.S. 962 (2002). Focusing on the title to subsection (b)(3) instead of reading section 42121(b) as a coherent whole negates the congressional directives that preliminary reinstatement must be ordered upon a finding of reasonable cause and that such orders not be stayed pending appeal.

Sections of a statute should not be read in isolation, but rather in conjunction with the provisions of the entire Act, considering both the object and policy of the Act.See, e.g., Brown & Williamson Tobacco Corp.v.FDA,153 F.3d 155, 162 (4th Cir. 1998),aff'd,529 U.S. 120 (2000). 49 U.S.C. 42121(b)(2)(A)'s clear statement that objections shall not stay any preliminary order of reinstatement demonstrates Congress's intent that the Secretary's preliminary orders of reinstatement be immediately effective. Reading 49 U.S.C. 42121(b)(5) to allow enforcement of such orders is the only way to effectuate this intent.

The Secretary's interpretation is buttressed by the legislative history of Sarbanes-Oxley and AIR21. Before Congress enacted Sarbanes-Oxley, the Department of Labor had interpreted this AIR21 provision to permit judicial enforcement of preliminary reinstatement orders. Accordingly, Congress is presumed to have been aware of the Department's interpretation of 49 U.S.C. 42121(b)(5) and to have adopted that interpretation when it incorporated that provision by reference.See Lorillardv.Pons,434 U.S. 575, 580-81 (1978) (“[W]here * * * Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute”). The Secretary's interpretation is further supported by the legislative history of AIR21, which makes clear that Congress regarded preliminary reinstatement as crucial to the protections provided in the statute. Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor,Solisv.Tenn. Commerce Bancorp, Inc.,No. 10-5602, at 41-44 (6th Cir. 2010) (reviewing legislative history of AIR21). Interpreting 49 U.S.C. 42121(b)(5) to permit judicial enforcement of the Secretary's preliminary orders of reinstatement is necessary to carry out Congress' clearly expressed intent that whistleblowers be immediately reinstated upon the Secretary's finding of reasonable cause to believe that retaliation has occurred.

Sarbanes-Oxley also permits the person on whose behalf the order was issued under Sarbanes-Oxley to obtain judicial enforcement of orders and the terms of a settlement agreement. 18 U.S.C. 1514A(b)(2)(A) incorporating 49 U.S.C. 42121(b)(6).

This section sets forth Sarbanes-Oxley's provisions allowing a complainant to bring an originalde novoaction in district court, alleging the same allegations contained in the complaint filed with OSHA, if there has been no final decision of the Secretary within 180 days of the filing of the complaint. This section has been amended to reflect the 2010 statutory amendments which afford parties bringing cases under 18 U.S.C. 1514A(b)(1)(B) the right to a trial by jury.

This section also has been amended to require complainants to provide file-stamped copies of their complaint within seven days after filing a complaint in district court to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the complaint also must be provided to the Regional Administrator, the Assistant Secretary, Occupational Safety and Health Administration, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed.

It is the Secretary's position that complainants may not initiate an action in Federal court after the Secretary issues a final decision, even if the date of the final decision is more than 180 days after the filing of the complaint. The purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals.

This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of Sarbanes-Oxley requires.

No substantive changes have been made to this section.

This rule contains a reporting provision (filing a retaliation complaint, section 1980.103) which was previously reviewed and approved for use by the Office of Management and Budget (“OMB”) and assigned OMB control number 1218-0236 under the provisionsof the Paperwork Reduction Act of 1995 (Pub. L. 104-13).

The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (“APA”) do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). This is a rule of agency procedure and practice within the meaning of that section. Therefore, publication in theFederal Registerof a notice of proposed rulemaking and request for comments are not required for these regulations, which provide the procedures for the handling of retaliation complaints. Although this is a procedural rule not subject to the notice and comment procedures of the APA, we are providing persons interested in this interim final rule 60 days to submit comments. A final rule will be published after the agency receives and reviews the public's comments.

Furthermore, because this rule is procedural rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in theFederal Registeris inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this interim final rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases.

The Department has concluded that this rule should be treated as a “significant regulatory action” within the meaning of Section 3(f)(4) of Executive Order 12866 because this rule adds new provisions and updates the language of the former regulations to implement the statutory changes made by Dodd-Frank. Executive Order 12866 requires a full economic impact analysis only for “economically significant” rules, which are defined in Section 3(f)(1) as rules that may have an annual effect on the economy of $100 million or more (adjusted annually for inflation), or adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Because the rule is procedural in nature, it is expected to have a negligible economic impact. Therefore, no economic impact analysis has been prepared. For the same reason, the rule does not require a Section 202 statement under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531et seq.). Furthermore, because this is a rule of agency procedure and practice, it is not a “rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)), and does not require Congressional review. Finally, this rule does not have “federalism implications.” The rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government” and therefore is not subject to Executive Order 13132 (Federalism).

The Department has determined that the regulation will not have a significant economic impact on a substantial number of small entities. The regulation simply updates existing procedures and implements changes necessitated by enactment of Dodd-Frank. Furthermore, no certification to this effect is required and no regulatory flexibility analysis is required because no proposed rule has been issued.

Document Preparation:This document was prepared under the direction and control of the Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor.

Accordingly, for the reasons set out in the preamble, 29 CFR part 1980 is revised to read as follows:

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS FORT WORTH (LCS 3) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 27, paragraph (b)i, pertaining to the verticality of the three all-round task lights. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Accordingly, 32 CFR part 706 is corrected pursuant to the authority granted in 33 U.S.C. 1605 by making the following correcting amendments:

The Captree State Parkway Bridge, across the State Boat Channel at mile 30.7, at Captree Island, New York, has a vertical clearance in the closed position of 29 feet at mean high water and 30 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.799(i).

The waterway users are recreational vessels of various sizes. The bridge opened 7 times in both June and July, 3 openings in August, and 6 openings in September. During the winter months the bridge rarely opens since the recreational vessels that transit this waterway are normally in winter storage.

The owner of the bridge, New York State Department of Transportation, requested a temporary deviation from the regulations to help facilitate emergency repairs at the bridge as a result of a recent fire at the bridge on October 9, 2011.

Under this temporary deviation the Captree State Parkway Bridge shall operate as follows: from October 28, 2011 through January 31, 2012, the draw shall open every three hours between 8 a.m. and 5 p.m., after at least a two-hour advance notice is given by calling the number posted at the bridge, (631) 904-3050. Vessels that can pass under the bridge in the closed position may do so at any time.

The Coast Guard believes that this temporary deviation should meet the reasonable needs of navigation because the recreational users that normally use this bridge are recreational vessels that do not operate during the winter months when this deviation will be in effect.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On July 26, 2011, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone; Fourth Annual Chillounge Night St. Petersburg Fireworks Display, Tampa Bay, St. Petersburg, FL in theFederal Register(76 FR 44531). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Due to the dangers posed by the pyrotechnics used in these fireworks displays, the safety zones are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event areas. For the safety concerns noted, it is in the public interest to have these regulations in effect during the events. This rule is intended to ensure the safety of the event participants, spectators and other waterway users, thus any delay in the rule's effective date would be impractical.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect the public from the hazards associated with the launching of fireworks over navigable waters of the United States.

The Coast Guard did not receive any comments to the proposed rule, and no changes were made to the regulatory text.

On November 19, 2011, a fireworks display is scheduled to take place during the Fourth Annual Chillounge Night St. Petersburg, an annual outdoor party, in St. Petersburg, Florida. The fireworks, which will be launched from Spa Beach Park, will explode over the waters of Tampa Bay. The fireworks display is scheduled to commence at 10 p.m. and conclude at approximately 10:05 p.m.

This rule establishes a temporary safety zone that encompasses certain waters of Tampa Bay in the vicinity of Spa Beach in St. Petersburg, Florida. The temporary safety zone will be enforced from 9:30 p.m. on November 19, 2011, 30 minutes prior to the scheduled commencement of the fireworks display at approximately 10 p.m., to ensure the safety zone is clear of persons and vessels. Enforcement of the safety zone would cease at 10:45 p.m. on November 19, 2011, 40 minutes after the scheduled conclusion of the fireworks display, to account for possible delays. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the safety zone by contacting the Captain of the Port St. Petersburg by telephone at 727-824- 7524, or a designated representative via VHF radio on channel 16, to request authorization. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget.

The economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for less than two hours; (2) vessel traffic in the area will be minimal during the enforcement period; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port St. Petersburg or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have consideredwhether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Tampa Bay encompassed within the safety zone from 9:30 p.m. until 10:45 p.m. on November 19, 2011. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-(888) 734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.3

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone, as described in paragraph 34(g) of the Instruction, which will be enforced for less than two hours. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive necessary information regarding the fireworks display until August 1, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the fireworks display. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Due to the dangers posed by the pyrotechnics used in these fireworks displays, the safety zones are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event areas. For the safety concerns noted, it is in the public interest to have these regulations in effect during the events. This rule is intended to ensure the safety of the event participants, spectators and other waterway users, thus any delay in the rule's effective date would be impractical.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect the public from the hazards associated with the launching of fireworks over navigable waters of the United States.

On November 11, 2011, Creative Pyrotechnics is sponsoring the Art Gallery Party St. Pete 2011 Fireworks Display in St. Petersburg, Florida. The fireworks display will be launched from Spa Beach and will explode over the waters of Tampa Bay. The fireworks display is scheduled to commence at 11 p.m. and conclude at 11:05 p.m.

The safety zone encompasses certain waters of Tampa Bay within the vicinity of Spa Beach in St. Petersburg, Florida. This safety zone will be enforced from 10:30 p.m. on November 11, 2011, thirty minutes prior to the scheduled commencement of the fireworks display at approximately 11 p.m., to ensure the safety zone is clear of persons and vessels. Enforcement of the safety zone will cease at 11:35 p.m. on November 11, 2011, thirty minutes after the scheduled conclusion of the fireworks display, to account for possible delays.

Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for one hour and five minutes; (2) vessel traffic in the area is expected to be minimal during the enforcement period; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port St. Petersburg or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Tampa Bay encompassed within the safety zone from 10:30 p.m. until 11:35 p.m. on November 11, 2011. For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-(888)-REG-FAIR (1-(888) 734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments,because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a temporary safety zone that will be enforced for a total of one hour and five minutes. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On June 30, 2011 (76 FR 38340), EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from the following party.

1. Sarah Jackson, Earthjustice, letter dated August 1, 2011. The comments and our responses are summarized below.

Comment #1:Earthjustice asserts that EPA must disapprove Rule 4692 for failure to satisfy CAA requirements for reasonably available control technology (RACT) and reasonably available control measures (RACM) because the rule does not require reasonable controls on under-fired charbroilers (UFC).

Response #1:For the reasons discussed in our proposed rule (76 FR 38340) and further below, we disagree and continue to believe that Rule 4692 requires all control measures that are “reasonably available” for implementation in the San Joaquin Valley (SJV), considering technical and economic feasibility. We respond more specifically below to Earthjustice's assertions regarding the technical and economic feasibility of UFC controls.

Comment #2:Earthjustice asserts that reductions from this source category played a significant role in SJVUAPCD's plan to reduce PM2.5levels in the SJV, but the current rule reduces emissions by only 0.02 tons/day—less than 1% of what was promised in SJVUAPCD's 2008 PM2.5plan.

Response #2:As discussed in our proposal, EPA evaluated Rule 4692 to determine whether it complies with the enforceability requirements of CAA section 110(a) and whether EPA's approval of it into the SIP would satisfy the requirements concerning attainment and reasonable further progress (RFP) in CAA section 110(l). Although this rule is not subject to the specific ozone RACT control requirement in CAA 182(b)(2) and (f), we also evaluated the control requirements in the rule to determine whether it requires all measures that are “reasonably available” for implementation in the SJV, considering technical and economic feasibility. We did not evaluate the emission reductions associated with this rule as such an evaluation belongs in the context of EPA's action on the State/District's RACM demonstration for the relevant NAAQS. For this reason, we did not propose to make a regulatory determination with respect to RACM in this rulemaking. Instead, we evaluated only the control requirements in the rule and considered whether additional controls for this particular source category are demonstrated to be technically and economically feasible for implementation in the area at this time. As stated in the Technical Support Document (TSD) for our proposal, EPA will take action in separate rulemakings on the State's RACM demonstration for the relevant NAAQS based on an evaluation of the control measures submitted as a whole and their overall potential to advance the applicable attainment dates in the SJV. See Technical Support Document For EPA's Direct Final Rulemaking For the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District Rule 4692, Commercial Charbroiling, EPA Region 9, June 9, 2011, page 4 (TSD).

Comment #3:Earthjustice contends that SJVUAPCD's May 2009 Rule 4692 staff report states that UFC control is reasonably available and cost-effective at as little as $5,800 per ton PM reduced, and that SJVUAPCD subsequently abandoned UFC control based on inflated new cost information. Earthjustice also asserts that the October 2009 staff report does not include UFC emission reduction estimates needed to recalculate UFC control cost-effectiveness. Finally, Earthjustice asserts that even using the new inflated cost information and the May 2009 emission estimates, UFC control is still more cost-effective than chain-driven charbroiler controls that SJVUAPCD and EPA are approving in Rule 4692 as reasonable.

Response #3:The $5,800/ton estimate provided in SJVUAPCD's May 2009 staff report references a draft staff report that relies on 2007 estimates from the Bay Area Air Quality Management District (BAAQMD).1 This was the low end of a range of estimates that BAAQMD had developed; the high end of BAAQMD's cost estimates were over $100,000/ton. See response to comment 5 below. In 2009, SJVUAPCD revised the low end of the range in the draft staff report by increasing it to $22,300/ton, based on updated information including cost quotes from vendors of control equipment. SJVUAPCD's revised cost-effectiveness analysis still resulted in cost-per-ton estimates for UFC controls within the range of estimates developed by BAAQMD and the South Coast Air Quality Management District (SCAQMD). We believe these cost estimates were performed following standard accepted procedures and the commenter has not provided specific information to demonstrate otherwise.

Comment #4:Earthjustice comments that appendix C to SJVUAPCD's October 2009 staff report assigns emission reductions of 0.453 tons per year (tpy) per restaurant to potential UFC controls but never explains the basis for this estimate or why it is used instead of BAAQMD's estimate, which is based on scientific studies. Earthjustice asserts that 1.44 tons per day (tpd) (the median of the range provided in SJVUAPVD's May 21, 2009 staff report) is a more appropriate estimate of emission reductions from UFC controls.

Response #4:In response to EPA's inquiry regarding SJVUAPCD's cost-effectiveness evaluation, the District provided additional information to explain the cost-effectiveness analyses in its August 2009 and September 2009 staff reports.2 Specifically, SJVUAPCD identified the sources of its emissionfactor data and explained the assumptions underlying its calculations of the incremental cost-effectiveness of UFC controls. SJVUAPCD used information from Dun & Bradstreet on the number of restaurants operating within SJV, together with other reasonable assumptions about the numbers of UFC units and the quantities and types of meats grilled at these restaurants, to develop a “composite” emission factor for the source category, which provided the basis for its estimate of 0.453 tpy in potential PM2.5reductions per restaurant from the use of UFC controls. The SJVUAPCD notes that Earthjustice appears to have estimated PM10instead of PM2.5emissions, which increased the emission reduction estimates, and to have relied on less accurate estimates of the quantity of meat cooked and emission factors for various charbroiled meats. We have reviewed the additional information provided by SJVUAPCD and concur with the District that additional UFC controls have not been demonstrated to be “reasonably available” considering technical and economic feasibility in the SJV area at this time.

Comment #5:Earthjustice comments that except for the wet scrubber, no explanation is given for why SJVUAPCD's estimates for UFC control cost are much higher than BAAQMD's.

Response #5:As explained in our TSD, SJVUAPCD's cost estimates for UFC controls are within the range of cost estimates that other California districts have developed for similar controls. See TSD at 4. SJVUAPCD estimates that the cost of UFC controls ranges from $22K-$58K/ton PM2.5reduced,3 BAAQMD estimates $17K-$143K/ton VOC or PM,4 and SCAQMD estimates $8K-$34K/ton PM.5 The commenter has provided no specific information to indicate otherwise.

Comment #6:Earthjustice comments that BAAQMD concluded that UFC control is cost-effective and adopted control requirements in 2007. Earthjustice also asserts that EPA's claim that UFC controls are not reasonably available because none have yet been certified to comply with BAAQMD's rule “is absurd since * * * certification is not required until the rule limits take effect in 2013.”

Response #6:We explained in our TSD our reasons for concurring with SJVUAPCD's conclusion that UFC control is not reasonably available for implementation within the SJV at this time.6 These include SJVUAPCD's cost-effectiveness analysis of UFC controls and concerns regarding the technical feasibility of UFC controls. We also noted that we are unaware of any other federal or state regulation or guidance suggesting UFC control is reasonably available for the commercial charbroiling industry except for BAAQMD's Regulation 6 Rule 2. We therefore disagree with Earthjustice's suggestion that the absence of compliance certifications under the BAAQMD's rule provided the only basis for our conclusion. As to BAAQMD's rule, we noted that most facilities in the Bay Area are too small to trigger the UFC control requirements of Regulation 6 Rule 2 and that no facilities had yet certified compliance with these limits. This information is relevant to our evaluation of technical feasibility because, until the BAAQMD confirms that sources are complying with the UFC control requirements, we have only limited information indicating that such controls are demonstrated to be technically feasible for the commercial charbroiling industry. It appears, however, that a large number of facilities (200) may be subject to BAAQMD's UFC control requirement7 and will be required to certify by 2013 whether they are complying with the UFC control requirements of that rule. We encourage the District to reevaluate Rule 4692 at the earliest opportunity, taking into account the most recent information about the technical and economic feasibility of UFC controls, and to adopt all reasonably available control measures for commercial charbroiling that will expedite attainment of the PM2.5and ozone NAAQS in the SJV.

Comment #7:Earthjustice asserts that actual controls have been installed in California and provide empirical data on costs and emission reductions, and further claims that EPA and SJVUAPCD are ignoring this data and relying on conflicting information that lacks any reasonable basis.

Response #7:We do not dispute that UFC controls have been installed at facilities in California.8 As discussed in our responses above, however, SJVUAPCD explained the basis for its assessment of the economic feasibility of UFC controls in SJV, including the empirical data underlying these evaluations, and we concur with the District's conclusion based on these evaluations that UFC control is not reasonably available in the SJV at this time.

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements wouldbe inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On August 23, 2011 (76 FR 52623), EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of theAct, EPA is fully approving this rule into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modifiedelevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act.This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act.As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification.This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism.This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform.This final rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is amended as follows:

This document announces that, on October 20, 2011, OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 64.606(a)(2)(v) and (g)(2). The Commission publishes this notice as an announcement of the effective date of the rules. See, In the Matter of Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, FCC 11-118, published at 76 FR 47476, August 5, 2011. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1160, in your correspondence. The Commission will also accept your comments via the Internet if you send them toPRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on October 20, 2011, for the information collection requirements contained in the Commission's rules at 47 CFR 64.606(a)(2)(v) and (g)(2).

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current valid OMB Control Number. The OMB Control Number is 3060-1160.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number:3060-1160.

OMB Approval Date:October 20, 2011.

OMB Expiration Date:April 30, 2012.

Title:Structure and Practices of the Video Relay Service Program, Second Report and Order and Order, CG Docket No. 10-51.

Form Number:N/A.

Type of Review:New collection.

Respondents:Business or other for-profit.

Number of Respondents and Responses:31 respondents; 53 responses.

Estimated Time per Response:.017 (1 minute) to .50 hours (30 minutes).

Frequency of Response:Annual and one-time reporting requirements; and third party disclosure requirement.

Obligation to Respond:Required to obtain or retain benefit. The statutory authority for the information collection requirements is found at section 225 of the Communications Act, 47 U.S.C. 225. The law was enacted on July 26, 1990, as Title IV of the Americans with Disabilities Act, Public Law 101-336, 104 Stat. 327, 366-69.

Total Annual Burden:6 hours.

Total Annual Cost:None.

Nature and Extent of Confidentiality:An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information (PII) from individuals.

Privacy Impact Assessment:No impact(s).

Needs and Uses:On July 28, 2011 the Commission releasedSecond Report and Order and OrderFCC 11-118, published at 76 FR 47476, August 5, 2011, adopting final and interim rules—containing information collection requirements—designed to prevent fraud and abuse, and ensure that the Internet-based forms of Telecommunications Relay Services (iTRS) is being offered in compliance with all of the Commission's rules and orders. Specifically, the interim rules, described in A. and B. below, require that applicants and providers certify, under penalty of perjury, that their certification applications and annual compliance filings required under §§ 64.606(a)(2) and 64.606(g) of the Commission's rules are truthful, accurate, and complete. The final rules, described in C. and D. below, are designed to enhance disclosures to iTRS consumers so that they are better aware of service terminations or temporary cessations.

Below are the information collection requirements contained in theSecond Report and Order and Order:

The chief executive officer (CEO), chief financial officer (CFO), or other senior executive of an applicant for iTRS certification with first hand knowledge of the accuracy and completeness of the information provided, when submitting an application for certification for eligibility to receive compensation from the Intestate TRS Fund, must certify under penalty of perjury that all application information required under the Commission's rules and orders has been provided and that all statements of fact, as well as all documentation contained in the application submission, are true, accurate, and complete.

The chief executive officer (CEO), chief financial officer (CFO), or other senior executive of an iTRS providerwith first hand knowledge of the accuracy and completeness of the information provided, when submitting an annual compliance report under paragraph (g) of § 64.606 of the Commission's rules, must certify under penalty of perjury that all information required under the Commission's rules and orders has been provided and all statements of fact, as well as all documentation contained in the annual compliance report submission, are true, accurate, and complete.

The applicant for certification must give its customers at least 30 days notice that it will no longer provide service should the Commission determine that the applicant's certification application does not qualify for certification under paragraph (a)(2) of § 64.606 of the Commission's rules.

The provider must provide notification of temporary service outages to consumers on an accessible Web site, and the provider must ensure that the information regarding service status is updated on its Web site in a timely manner.

This is a synopsis of the Commission'sReport and Order,MB Docket No. 11-140, adopted October 18, 2011, and released October 19, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS (http://fjallfoss.fcc.gov/ecfs/). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-(800) 478-3160 or via the company's Web site,http://www.bcipweb.com.To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of thisReport and Orderin a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act,see5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The FCC published a document in theFederal Registerof September 8, 2011 (76 FR 55585), in which the Compliance date listed in theDatessection of the preamble was incorrect and from which a rule paragraph was missing. This technical amendment revises the Compliance date section of the preamble to reflect the text of the item and the rules as published. It also adds a rules paragraph that was included inthe Proposed Rules but inadvertently omitted from the Final Rules, and revises adjacent rules to reflect this addition. In rule FR Doc. 2011-22878 published on September 8, 2011 (76 FR 55585), make the following two corrections. First, on page 55585, in the second column, revise the “Compliance date” line to read “Compliance date:July 1, 2012.” Secondly, on page 55605, in the third column, revise paragraphs 79.3(e)(1)(iv) and (v) and add paragraph (vi).

Accordingly, 47 CFR part 79 is corrected by making the following correcting amendments: