On April 30, 2008, pursuant to the provisions of the Privacy Act of 1974, the U.S. Department of Agriculture (USDA) published in theFederal Register(73 FR 23414-23416, Docket No. APHIS-2008-0026) a system of records notice establishing the Automated Trust Funds (ATF) database system of records. The Federal Information Security Management Act of 2002 (44 U.S.C. 3541et seq.), the Chief Financial Officers Act of 1990 (31 U.S.C. 101et seq.), the Clinger-Cohen Act of 1996 (40 U.S.C. 1401(3)), and the Federal Managers' Financial Integrity Act of 1982, Public Law 97-255, provided authority for the system.

The ATF database has been replaced by USDA's Financial Management Modernization Initiative (FMMI) and is no longer in use. Information in the ATF database about cooperators who have trust fund agreements with APHIS, including company name, company address, account number and balance, as well as company contact information, including name, telephone number, and mailing address, were transferred to FMMI. All other information was destroyed. Accordingly, this notice formally terminates this system of records.

The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in theFederal Registerwhenever new recreation fee areas are established. The Coronado National Forest currently has four other rental facilities. These facilities are booked regularly throughout the year. A business analysis for the rental of the Palisades Ranger Residence shows public interest in this sort of recreational experience on the Coronado National Forest. A market analysis indicates that the $125.00 daily fee is both reasonable and acceptable for this sort of unique recreational experience.

People wanting to rent the Palisades Ranger Residence will need to do so through the National Recreation Reservation Service atwww.recreation.gov,or by calling 1-877-444-6777. The National Recreation Reservation Service charges a $9 reservation fee for Internet reservations and a $10 reservation fee for phone reservations.

The merchandise covered by the order includes certain cased pencils from the PRC. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 9609.10.00. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description available inAntidumping Duty Order: Certain Cased Pencils from the People's Republic of China,59 FR 66909 (December 28, 1994) is dispositive.

For those companies named in theInitiation Notice 1 for whom all review requests have been withdrawn and who previously received separate rate status in prior segments of this case, we are rescinding this administrative review, in accordance with 19 CFR 351.213(d)(I). These companies are listed in Appendix II.

The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). Export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a non-market economy within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. Specifically, Dixon's factors of production have been valued in Thailand and Indonesia, both of which are economically comparable to the PRC and significant producers of comparable merchandise.

For a full description of the methodology underlying our conclusions,see“Decision Memorandum for Preliminary Results of 2010-2011 Antidumping Duty Administrative Review: Certain Cased Pencils from the People's Republic of China,” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Paul Piquado, Assistant Secretary for Import Administration, dated January 2, 2013 (“Preliminary Decision Memorandum”) and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users athttp://iaaccess.trade.govand in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the Internet athttp://www.trade.gov/ia/.The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

We preliminary find that Dixon has not satisfied the requirements of 19 CFR 351.222(b).2 Thus, under section 751 of the Act, we preliminarily determine not to revoke in part the order with respect to Dixon.SeePreliminary Decision Memorandum.

The Department preliminarily determines that the following weighted-average dumping margin exists:

The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments no later than 30 days after the date of publication of these preliminary results of review.3 Rebuttals to written comments may be filed no later than five days after the written comments are filed.4

Any interested party may request a hearing within 30 days of publication of this notice.5 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.6

The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

In accordance with 19 CFR 351.301(c)(3)(ii), the deadline for submission of publicly available information to value factors of production under 19 CFR 351.408(c) is 20 days after the date of publication of the preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department hasextended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department generally will not accept in the rebuttal submission additional or alternative surrogate value information not previously on the record, if the deadline for submission of surrogate value information has passed.7 Furthermore, the Department generally will not accept business proprietary information in either the surrogate value submissions or the rebuttals thereto, as the regulation regarding the submission of surrogate values allows only for the submission of publicly available information.8

Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.9 For assessment purposes, we calculated exporter/importer- (or customer-) specific assessment rates for merchandise subject to this review. Dixon reported that its U.S. affiliate was the importer of record for all U.S. sales. Thus, we calculated anad valoremrate by dividing the total dumping margins for reviewed sales by the total entered values associated with those transactions. If Dixon's antidumping duty rate exceeds 0.5 percentad valoremfor the final results of this review, we will instruct CBP to assess duties on all of Dixon's entries.See19 CFR 351.106(c)(2). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this review.

For companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions regarding entries of the rescinded companies directly to CBP 15 days after publication of this notice.

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For Dixon, which has a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero orde minimis,then no cash deposit will be required); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the PRC-wide entity; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.

[FR Doc. 2013-00452 Filed 1-10-13; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration [A-533-824] Polyethylene Terephthalate Film, Sheet and Strip From India: Partial Rescission of Antidumping Duty Administrative Review; 2011-2012 AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

On July 6, 2012, the Department published thePreliminary Results.Between August 8, 2012, and August 20, 2012, interested parties submitted surrogate value information and rebuttal surrogate value comments. Interested parties were further provided an opportunity to comment on thePreliminary Results.On September 21, 2012, the Department received a case brief from Zhaoqing Tifo New Fiber Co., Ltd. On September 28, 2012, the Department received a rebuttal brief from DAK Americas LLC.

All issues raised in the case and rebuttal briefs by parties to this review are addressed in the memorandumentitled, “Certain Polyester Staple Fiber from the People's Republic of China: Issues and Decision Memorandum for the Final Results of the 2010-2011 Administrative Review” (“I&D Memo”), which is dated concurrently with and adopted by this notice. A list of the issues which parties raised and to which we respond in the I&D Memo is attached to this notice as Appendix I. The I&D Memo is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users athttp://iaaccess.trade.gov,and is available to all parties in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the I&D Memo can be accessed directly on the Internet athttp://www.trade.gov/ia/.The signed I&D Memo and the electronic versions of the I&D Memo are identical in content.

The Department has made changes to the preliminary margin calculation. Specifically, we:

• Used the 2010 financial statement of P.T. Tifico Fiber Indonesia Tbk. to calculate all surrogate financial ratios.2 As a result of that decision, we did not separately value electricity and water in the final margin program because these factors of production are already captured in the surrogate financial ratios.

• Corrected various errors as described in the Analysis Memo and Surrogate Value Memo.3

The merchandise subject to the order is certain polyester staple fiber.4 The product is currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) item numbers 5503.20.0045 and 5503.20.0065. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope of the order remains dispositive.5

On September 22, 2011, the Department received a no-shipment certification from Huvis Sichuan. To confirm the facts behind this assertion, the Department issued a no-shipment inquiry to U.S. Customs Border and Protection (“CBP”) requesting that it provide any information that contradicted the no-shipment claim. The Department received no information from CBP indicating that there were reviewable transactions from Huvis Sichuan during the POR.

On August 6, 2012, the Department received comments on thePreliminary Resultsfrom Huvis Sichuan.6 Huvis Sichuan noted that thePreliminary Resultsshould have included notice that the Department intends to rescind this review with respect to Huvis Sichuan. The Department inadvertently omitted this information from thePreliminary Results.Therefore, we determine that Huvis Sichuan had no reviewable entries of subject merchandise during the POR. Consistent with our “automatic assessment” clarification, the Department will issue appropriate instructions to CBP based on our final results.7

The weighted-average dumping margins for the POR are as follows:

The Department will disclose calculations performed for these final results to the parties within five days of the date of publication of this notice, in accordance with section 351.224(b) of the Department's regulations.

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specificad valoremduty assessment rates based on the ratio of the total amount of the dumping calculated for the importer's examined sales to the total entered value of those same sales. The Department will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate calculated in the final results of this review is abovede minimis(i.e.,0.50 percent). Where an importer-specific assessment rate is zero orde minimis,the Department will instruct CBP to liquidate the appropriate entries without regard to antidumping duties in accordance with 19 CFR 351.106(c)(2).

The Department recently announced a refinement to its assessment practice in NME cases. Pursuant to this refinement in practice, for entries that were not reported in the U.S. sales database submitted by companies individually examined during this review, the Department will instruct CBP to liquidate such entries at the NME-wide rate. In addition, if the Department determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (i.e.at that exporter's rate) will be liquidated at the NME-wide rate.8

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in the final results of review (except, if the rate is zero orde minimis, i.e.,less than 0.5 percent, a zero cash deposit rate will be required for that exporter); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have a separate rate, the cash deposit rate will continue to be the exporter-specific rate published for themost recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be 44.30 percent, the rate for the PRC-wide entity; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. The deposit requirements, when imposed, shall remain in effect until further notice.

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

The Department published antidumping duty orders on pasta from Italy and Turkey in July 1996.1 On September 4, 2012, the Department initiated sunset reviews of those orders pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).2 On September 20, 2012, the Department received notices of intent to participate in these sunset reviews on behalf of New World Pasta Company, Dakota Growers Pasta Company, A. Zerga's Sons, Inc., Philadelphia Macaroni Company, and American Italian Pasta Company (collectively, “the domestic interested parties”), within the applicable deadline specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act, as producers of certain pasta in the United States.

On October 4, 2012, the Department received an adequate substantive response regarding Turkey from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received an inadequate substantive response from respondent interested parties.3 On October 9, 2012, domestic interested parties filed a rebuttal to the GOT's submission.

On September 25, 2012, the Government of Italy (“GOI”) requested an extension of time to submit a substantive response. On September 27, 2012, the Department granted an extension until October 11, 2012; however, the GOI did not submit a response. On October 11, 2012, the Department received adequate substantive responses regarding Italy from the domestic interested parties, within the extended deadline specified in the Department's September 27, 2012, letter.

Pursuant to 19 CFR 351.218(e)(1)(ii)(C), because the Department received no substantive responses from foreign producers in either review, the Department is conducting expedited, 120-day, sunset reviews of these antidumping duty orders.

The merchandise subject to the order is pasta. The product is currently classified under items 1901.90.90.95 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS numbers are provided for convenience and customs purposes, the written product description, available inItalian Order,remains dispositive.4

The merchandise subject to the order is pasta. The product is currently classified under items 1902.19.20 of the HTSUS. Although the HTSUS numbers are provided for convenience andcustoms purposes, the written product description, available inTurkish Order,remains dispositive.

All issues raised by parties to these sunset reviews are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with this notice, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail were the orders revoked. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum, which is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users athttp://iaaccess.trade.govand in the Central Records Unit in room 7046 of the main Commerce building. In addition, a complete version of the Decision Memorandum may be accessed directly on the Web athttp://ia.ita.doc.gov/frn,under the heading “January 2013.” The paper copy and electronic versions of the Decision Memorandum are identical in content.

We determinethat revocation of the antidumping duty orders on pasta from Italy and Turkey would likely lead to continuation or recurrence of dumping at the following percentage weighted-average margins:

This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

These sunset reviews and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

The New England Council will hold a closed session on Monday, January 28 from 1 p.m. to 5 p.m. to address employment matters.

Following introductions and any announcements on Tuesday, the Council will receive brief reports from the NEFMC Chairman and Executive Director, the Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, NOAA General Counsel, representatives of the Atlantic States Marine Fisheries Commission, and staff from the regional Vessel Monitoring Systems Operations and NOAA Law Enforcement offices. The Council also will receive an update about Northeast Regional Ocean Council activities. Following these reports, NOAA's Northeast Regional Office staff will provide a presentation on a proposed offshore mussel aquaculture project off Cape Ann, MA and solicit comments or recommendations. The Monkfish Committee will update the Council about the development of Amendment 6. This report will include details about alternatives that would modify the current days-at-sea/trip limit system, incorporate monkfish into groundfish sectors and/or outline an Individual Transferable Quota (ITQ) program for the fishery. The Council may approve a request asking the NOAA Regional Administrator to provide feedback about the Northeast Regional Office's ability to provide timely data during the development a sector management or ITQ program for monkfish. Prior to a lunch break, the Northeast Regional Office will present a Draft Environmental Assessment on Standard Bycatch Reporting Methodology and also ask the Council and public for comments. The day will conclude with a lengthy set of decisions about Atlantic Herring. The Council is expected to select and approve final recommendations for multi-year herring fishery specifications (2013-15) and Framework Adjustment 2 to the Herring FMP (to allow consideration of seasonal quota splitting and carryover of unutilized quota). The specifications will address overfishing levels and acceptable biological catch based on Scientific and Statistical Committee advice, management uncertainty, optimum yield and a stock-wide annual catch limit (ACL) for Atlantic herring, Domestic Annual Harvest, Domestic Annual Processing, U.S. At-Sea Processing, Border Transfer, sub-ACLs (quotas) for each of four management areas, seasonal sub-ACL allocations (based on Framework 2 provisions), research set-asides, set-asides for fixed gear fisheries in the Gulf of Maine, and a range of accountability measures (AMs) for the herring fishery.

The Council will receive a report from the Northeast Fisheries Science Center staff summarizing the findings of the 55th Stock Assessment Workshop/Stock Assessment Review Committee meetings. The species addressed were Gulf of Maine cod and Georges Bank cod. The Council's Scientific and Statistical Committee will report on its acceptable biological catch recommendations for those two species, and possibly set ABCs for several other groundfish stocks, all for fishing years 2013-15. During the Groundfish Committee's report, the Council intends to specify ABCs and ACLs for fishing year 2013, to include consideration of a revised Southern New England/Mid-Atlantic winter flounder rebuilding plan and changes to the prohibition on landings Southern New England/Mid-Atlantic winter flounder. These measures may be adopted either through a specification package or an additional framework adjustment. Additionally, the Council will discuss and could approve a request for interim action to reduce overfishing on Gulf of Maine cod and Gulf of Maine haddock in fishing year 2013.

The final day of the New England Council's meeting will be used to focus on further development of Draft EFH Omnibus Habitat Amendment 2. The Habitat Committee will present recommendations on Dedicated HabitatResearch Areas, while the Groundfish Committee will recommend specific spatial management options to achieve groundfish objectives in the Habitat Amendment. In the absence of Groundfish Committee recommendations, the Council will receive an update from the Closed Area Technical Team and a summary of committee progress. The full Council will direct it attention to providing guidance to both committees about reconciling the two sets of options and identify next steps. The selection of alternatives to be analyzed in a Draft Environmental Impact Statement will take place at the Council's April 2013 meeting.

Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (seeADDRESSES) at least 5 days prior to the meeting date.

The items of discussion are as follows:

1. The Council's Fishery Ecosystem Plan, which is scheduled to be adopted at the Council's March 2013 meeting in Tacoma, WA.

2. The February 5-8, 2013 Pacific sardine harvest parameters workshop.

3. A plan for holding future CPSMT and CPSAS elections.

4. Other items relevant to Coastal Pelagic Species management may be discussed as time allows, at the discretion of the Chairs.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the CPSMT's intent to take final action to address the emergency.

This listening station is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt, at (503) 820-2280, at least 5 days prior to the meeting date.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Permission shall be granted if NMFS finds that the taking will have a negligible impact on the species orstock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

On October 19, 2011, CALTRANS submitted a request to NOAA requesting an IHA for the possible harassment of small numbers of California sea lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina richardsii), harbor porpoises (Phocoena phocoena), and gray whales (Eschrichtius robustus) incidental to construction associated with a replacement bridge for the East Span of the SF-OBB, in San Francisco Bay (SFB), California. The proposed construction activities would last for approximately three years, starting 2013. After receiving NMFS comments on the IHA application regarding proposed monitoring measures, CALTRANS submitted a revised IHA application on April 23, 2012. The action discussed in this document is based on CALTRANS April 23, 2012, IHA application and NMFSFederal Registernotice for the proposed IHA (77 FR 50473; August 21, 2012).

An IHA was previously issued to CALTRANS for this activity on February 7, 2011 and it expired on February 6, 2012 (76 FR 7156, February 9, 2011). No in-water construction activity was conducted during the period covered by that IHA. CALTRANS' renewal application indicates that the next stage of the construction activities will involve dismantling of the existing bridge, which is expected to start in fall 2013. However, some preparatory construction activities related to the dismantling may take place before the planned schedule. A detailed description of the proposed SF-OBB East Span project is provided in the CALTRANS' IHA application and in theFederal Registerfor the proposed IHA (77 FR 50473, August 21, 2012), and there is no change to the description of the activities. Therefore, the detailed description of the proposed construction activities is not repeated here, except for certain information that was missing in the earlier documents.

As stated in the IHA application and theFederal Registernotice for the proposed IHA (77 FR 50473; August 21, 2012), work at the Yerba Buena Island (YBI) access would involve the construction of a small (approximately 650 m2, or 7,000 ft2) H-pile supported trestle. The size of the H-pile was not identified in the proposed IHA. Discussion with CALTRANS indicated that it is unclear the size of the H-piles would be used. However, it is known that the contractor would most likely use HP H-piles, which with dimensions between 9.70 x 10.075 in. and 14.21 x 14.885 in., with length between 25 and 100 feet.

CALTRANS also stated that it's very unlikely that multiple pile driving would occur simultaneously. If in the case that more than one contractor would be employed to conduct the construction activity, maximum of two pile work could occur and most likely it would be one pile driving and one pile removal.

In addition, NMFS also worked with CALTRANS to revise the size of the exclusion zones and Level B harassment zones due to the lack of on-site data to establish specific zones for driving of 24- and 36-in piles, H-piles, and sheet piles. CALTRANS agreed that it will use the data of 48-in piles to establish the temporary exclusion zones and Level B harassment zones based on in-situ measurements conducted in 2009 (CALTRANS 2009) before revised zones are established based on on-site measurements during the test pile driving. Likewise, for vibratory pile driving, if hydroacoustic monitoring indicates that sound levels have the potential to exceed the 180 or 190 dB SPL, corresponding exclusion zones will be established. The temporary exclusion zones and Level B zones for various pile driving and dismantling activities are listed in Table 1.

A notice of receipt and request for public comment on the application and proposed authorization was published on August 21, 2012 (77 FR 50473). During the 30-day public comment period, the Marine Mammal Commission (Commission) provided the only comment.

Comment 1:The Commission recommends that NMFS promulgate regulations and condition them to require further public review if CALTRANS or the contractor proposes any substantial changes to the project plan.

Response:In theFederal Registernotice for the proposed IHA (77 FR 50473; August 21, 2012), NMFS noted that CALTRANS' dismantling of the existing east span SF-OBB may take up to five years to complete, therefore, a five-year letter of authorization (LOA) under a rulemaking may seem to be preferable. However, subsequent discussion with CALTRANS indicated that activities involving the existing bridge dismantling are likely to differ from year to year, and the agency may not be able to predict annual construction activities in advance. Further, the proposed dismantling activities could be completed in two to three years. Therefore, at this stage, NMFS concludes that the current best course of action for CALTRANS is to pursue annual IHAs.

Comment 2:The Commission requests NMFS require CALTRANS to implement full-time monitoring of Level A and B harassment zones during all in-water sound-producing activities (i.e., pile-driving and removal and bridge dismantlement activities).

Response:NMFS discussed with CALTRANS on marine mammal monitoring during its proposed in-water construction activities. As described in theFederal Registernotice for the proposed IHA (77 FR 50473; August 21, 2012) and in CALTRANS IHA application, CALTRANS' planned construction includes an average annual installation of up to 635 temporary falsework piles, 1,925 steel sheet piles, and various mechanical dismantling activities. The extent of the work made it infeasible and costly to implement marine mammal monitoring for Level A and B harassment zones at all times, particularly since some of the Level B harassment zone for vibratory pile driving extends to a radius of 2 km. CALTRANS agrees to monitor the 180 and 190 dB exclusion zones and 160 dB behavioral harassment zone for all unattenuated impact pile driving of H-piles, and the 180 and 190 dB exclusion zones for attenuated impact pile driving and mechanical dismantling. CALTRANS will also monitor the 160 dB behavioral harassment zone for 20% of the attenuated impact pile driving, and 120 dB behavioral harassment zone for 20% of vibratory pile driving and mechanic dismantling. However, CALTRANS will not monitor the unattenuated impact pile proofing, which only lasts for less than one minute. Proposed proofing of piles will be limited to a maximum of two piles per day, and for less than 1 minute per pile, administering a maximum of twenty blows per pile. CALTRANS states, and NMFS agrees, that the logistics of scheduling and mobilizing a monitoring team for activities that will last less than one minute is not practical.

General information on the marine mammal species found in California waters can be found in Carettaet al.(2011), which is available at the following URL:http://www.nmfs.noaa.gov/pr/pdfs/sars/po2010.pdf.Refer to that document for information on these species.

The marine mammals most likely to be found in the SF-OBB area are the California sea lion, Pacific harbor seal, and harbor porpoise. From December through May gray whales may also be present in the SF-OBB area. Information on California sea lion, harbor seal, and gray whale was provided in the November 14, 2003 (68 FR 64595),Federal Registernotice; information on harbor porpoise was provided in the January 26, 2006 (71 FR 4352),Federal Registernotice.

CALTRANS and NMFS have determined that open-water pile driving and pile removal, as well as dredging and dismantling of concrete foundation of existing bridge by saw cutting, flame cutting, mechanical splitting, drilling, pulverizing and/or hydro-cutting, as outlined in the project description, has the potential to result in behavioral harassment of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales that may be swimming, foraging, or resting in the project vicinity while pile driving is being conducted. Pile driving and removal could potentially harass those few pinnipeds that are in the water close to the project site, whether their heads are above or below the surface.

Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastaket al.1999; Schlundtet al.2000; Finneranet al.2002; 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is unrecoverable, or temporary (TTS), in which case the animal's hearing threshold will recover over time (Southallet al.2007). Since marine mammals depend on acoustic cues for vital biological functions, such as orientation, communication, finding prey, and avoiding predators, marine mammals that suffer from PTS or TTS could have reduced fitness in survival and reproduction, either permanently or temporarily. Repeated noise exposure that leads to TTS could cause PTS.

Measured source levels from impact pile driving can be as high as 214 dB re 1 μPa @ 1 m. Although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, experiments on a bottlenose dolphin (Tursiops truncates) and beluga whale(Delphinapterus leucas) showed that exposure to a single watergun impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), which is equivalent to 228 dB (p-p) re 1 μPa, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within 4 minutes of the exposure (Finneranet al.2002). No TTS was observed in the bottlenose dolphin. Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more noise exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa2-s) in the aforementioned experiment (Finneranet al.2002).

Noises from dismantling of marine foundations by mechanical means include, but are not limited to, saw cutting, mechanical splitting, drilling and pulverizing. Saw cutting and drilling constitute non-pulse noise, whereas mechanical splitting and pulverizing constitute impulse noise. Although the characteristics of these noises are not well studied, noises from saw cutting and drilling are expected to be similar to vibratory pile driving, and noises from mechanical splitting and pulverizing are expected to be similar to impact pile driving, but at lower intensity, due to the similar mechanisms in sound generating but at a lower power outputs. CALTRANS states that drilling and saw cutting are anticipated to produce underwater sound pressure levels (SPLs) in excess of 120 dB RMS, but are not anticipated to exceed the 180 dB re 1 μPa (RMS). The mechanical splitting and pulverizing of concrete with equipment such as a hammer hoe has the potential to generate high sound pressure levels in excess of 190 dB re 1 μPa (RMS) at 1 m.

However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity noise levels for prolonged period of time. Based on the best scientific information available, these sound levels are far below the threshold that could cause TTS or the onset of PTS.

In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from in-water pile driving during the SF-OBB construction activities is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by harbor porpoises. However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clarket al.2009) and cause increased stress levels (e.g., Footeet al.2004; Holtet al.2009).

Unlike TS, masking can potentially impact the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than 3 times in terms of SPL) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessels traffic, pile driving, dredging, and dismantling existing bridge by mechanic means, contribute to the elevated ambient noise levels, thus intensify masking.

Nevertheless, the sum of noise from the proposed SF-OBB construction activities is confined in an area of inland waters (San Francisco Bay) that is bounded by landmass, therefore, the noise generated is not expected to contribute to increased ocean ambient noise. Due to shallow water depth near the Oakland shore, dredging activities are mainly used to create a barge access channel to dismantle the existing bridge. Therefore, underwater sound propagation from dredging is expected to be poor due to the extreme shallowness of the area to be dredged.

Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardsonet al.1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities, changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping), avoidance of areas where noise sources are located, and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, and reproduction. Some of these significant behavioral modifications include:

• Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);

• Habitat abandonment due to loss of desirable acoustic environment; and

• Cessation of feeding or social interaction.

For example, at the Guerreo Negro Lagoon in Baja California, Mexico, which is one of the important breeding grounds for Pacific gray whales, shipping and dredging associated with a salt works may have induced gray whales to abandon the area through most of the 1960s (Bryantet al.1984). After these activities stopped, the lagoon was reoccupied, first by single whales and later by cow-calf pairs.

The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southallet al.2007).

The proposed project area is not believed to be a prime habitat for marine mammals, nor is it considered an area frequented by marine mammals. Therefore, behavioral disturbances that could result from anthropogenic noise associated with SF-OBB construction activities are expected to affect only a small number of marine mammals on an infrequent basis.

Currently NMFS uses 160 dB re 1 μPa (RMS) at received level for impulse noises (such as impact pile driving, mechanic splitting and pulverizing) as the onset of marine mammal behavioral harassment, and 120 dB re 1 μPa (RMS) for non-impulse noises (vibratory pile driving, saw cutting, drilling, and dredging).

As far as airborne noise is concerned, based on airborne noise levels measured and on-site monitoring conducted during 2004 under a previous IHA,noise levels from the East Span project did not result in the harassment of harbor seals hauled out on Yerba Buena Island (YBI). Also, noise levels from the East Span project are not expected to result in harassment of the sea lions hauled out at Pier 39 as airborne and waterborne sound pressure levels (SPLs) would attenuate to levels below where harassment would be expected by the time they reach that haul-out site, 5.7 km (3.5 miles) from the project site. Therefore, no pinniped hauled out would be affected as a result of the proposed pile-driving. A detailed description of the acoustic measurements is provided in the 2004 CALTRANS marine mammal and acoustic monitoring report for the same activity (CALTRANS' 2005).

Short-term impacts to habitat may include minimal disturbance of the sediment where individual bridge piers are constructed. Long-term impacts to marine mammal habitat will be limited to the footprint of the piles and the obstruction they will create following installation. However, this impact is not considered significant as the marine mammals can easily swim around the piles of the new bridge, as they currently swim around the existing bridge piers.

There are no relevant subsistence uses of marine mammals implicated by this action.

For the issuance of the IHA for the planned 2012-2013 SF-OBB construction activities to reduce adverse impacts to marine mammals to the lowest extent practicable, NMFS requires the following mitigation measures to be implemented.

To reduce impact on marine mammals, CALTRANS shall use marine pile driving energy attenuator (i.e., air bubble curtain system), or other equally effective sound attenuation method (e.g., dewatered cofferdam) for all impact pile driving, with the exception of pile proofing.

Before the commencement of in-water construction activities, which include impact pile driving, vibratory pile driving, and mechanical dismantling of existing bridge, CALTRANS shall establish exclusion zones where received underwater sound pressure levels (SPLs) are higher than 180 dB (rms) and 190 dB (rms) re 1 µPa for cetaceans and pinnipeds, respectively, and Level B behavioral harassment zones where received underwater sound pressure levels (SPLs) are higher than 160 dB (rms) and 120 dB (rms) re 1 µPa for impulse noise sources (impact pile driving) and non-impulses noise sources (vibratory pile driving and mechanic dismantling), respectively. Before the sizes of actual zones are determined based on hydroacoustic measurements, CALTRANS shall establish these zones based on prior measurements conducted during SF-OBB constructions, as described in Table 1 of this document.

Once the underwater acoustic measurements are conducted during initial test pile driving, CALTRANS shall adjust the size of the exclusion zones and Level B behavioral harassment zones, and monitor these zones accordingly.

NMFS-approved protected species observers (PSOs) shall conduct initial survey of the safety zone to ensure that no marine mammals are seen within the zones before impact pile driving of a pile segment begins. If marine mammals are found within the safety zone, impact pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes for pinnipeds and harbor porpoise and 30 minutes for gray whales. If no marine mammals are seen by the observer in that time it would be assumed that the animal has moved beyond the safety zone. This 15-minute criterion is based on scientific evidence that harbor seals in San Francisco Bay dive for a mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994), and the mean diving duration for harbor porpoises ranges from 44 to 103 seconds (Westgateet al.,1995).

Once the pile driving of a segment begins it cannot be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If pile driving stops and then resumes, it would potentially have to occur for a longer time and at increased energy levels. In sum, this would simply amplify impacts to marine mammals, as they would endure potentially higher SPLs for longer periods of time. Pile segment lengths and wall thickness have been specially designed so that when work is stopped between segments (but not during a single segment), the pile tip is never resting in highly resistant sediment layers. Therefore, because of this operational situation, if seals, sea lions, or harbor porpoises enter the safety zone after pile driving of a segment has begun, pile driving will continue and marine mammal observers will monitor and record marine mammal numbers and behavior. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously in this document.

It should be recognized that although marine mammals will be protected from Level A harassment (i.e., injury) through marine mammal observers monitoring a 190-dB exclusion zone for pinnipeds and 180-dB exclusion zone for cetaceans, mitigation may not be 100 percent effective at all times in locating marine mammals. Therefore, in order to provide additional protection to marine mammals near the project area by allowing marine mammals to vacate the area prior to receiving a potential injury, CALTRANS and its contractor will also “soft start” the hammer prior to operating at full capacity. This should expose fewer animals to loud sounds both underwater and above water. This would also ensure that, although not expected, any pinnipeds and cetaceans that are missed during the initial exclusion zone monitoring will not be injured.

As mentioned previously, although power down and shut-down measures will not be required for pile driving activities, these measures are required for mechanical dismantling of the existing bridge. The contractor perform mechanical dismantling work will stop in-water noise generating machinery when marine mammals are sighted within the designated exclusion zones.

The following monitoring measures are required for the proposed SF-OBB construction activities.

Besides using mitigation measures as a mean of implementing power down and shut-down measures for mechanical bridge dismantling, marine mammal monitoring will also be conducted to assess potential impacts from CALTRANS construction activities. CALTRANS will implement onsite marine mammal monitoring for 100% of all unattenuated impact pile driving of H-piles for 180- and 190-dB re 1 µPa exclusion zones and 160-dB re 1 µPaLevel B harassment zone, attenuated impact pile driving (except pile proofing) and mechanical dismantling for 180- and 190-dB re 1 µPa exclusion zones. CALTRANS will also monitor 20% of the attenuated impact pile driving for the 160-dB re 1 µPa Level B harassment zone, and 20% of vibratory pile driving and mechanic dismantling for the 120-dB re 1 µPa Level B harassment zone.

Monitoring of the pinniped and cetacean exclusion zones shall be conducted by a minimum of three qualified NMFS-approved protected species observers (PSOs). Observations will be made using high-quality binoculars (e.g., Zeiss, 10 x 42 power). PSOs will be equipped with radios or cell phones for maintaining contact with other observers and CALTRANS engineers, and range finders to determine distance to marine mammals, boats, buoys, and construction equipment.

Data on all observations will be recorded and will include the following information:

(1) Location of sighting;

(2) Species;

(3) Number of individuals;

(4) Number of calves present;

(5) Duration of sighting;

(6) Behavior of marine animals sighted;

(7) Direction of travel;

(8) When in relation to construction activities did the sighting occur (e.g., before, “soft-start”, during, or after the pile driving or removal).

The reactions of marine mammals will be recorded based on the following classifications that are consistent with the Richmond Bridge Harbor Seal survey methodology (for information on the Richmond Bridge authorization, see 68 FR 66076, November 25, 2003): (1) No response, (2) head alert (looks toward the source of disturbance), (3) approach water (but not leave), and (4) flush (leaves haul-out site). The number of marine mammals under each disturbance reaction will be recorded, as well as the time when seals re-haul after a flush.

The purpose of the underwater sound monitoring during dismantling of concrete foundations via mechanical means is to establish the exclusion zones of 180 dB re 1 µPa (rms) for cetaceans and 190 dB re 1 µPa (rms) for pinnipeds. Monitoring will occur during the initial use of concrete dismantling equipment with the potential to generate sound pressure levels in excess of 180 dB re 1 µPa (rms). Monitoring will likely be conducted from construction barges and/or boats. Measurements will be taken at various distances as needed to determine the distance to the 180 and 190 dB re 1 µPa (rms) contours.

The purpose of underwater sound monitoring during impact pile driving will be to verify sound level estimates and confirm that sound levels do not equal or exceed 180 dB re 1 µPa (rms).

CALTRANS will notify NMFS prior to the initiation of the pile driving and dismantling activities for the removal of the existing east span. NMFS will be informed of the initial sound pressure level measurements for both pile driving and foundation dismantling activities, including the final exclusion zone and Level B harassment zone radii established for impact and vibratory pile driving and marine foundation dismantling activities.

Monitoring reports will be posted on the SFOBB Project's biological mitigation Web site (www.biomitigation.org) on a weekly basis if in-water construction activities are conducted. Marine mammal monitoring reports will include species and numbers of marine mammals observed, time and location of observation and behavior of the animal. In addition, the reports will include an estimate of the number and species of marine mammals that may have been harassed as a result of activities.

In addition, CALTRANS will provide NMFS with a draft final report within 90 days after the expiration of the IHA. This report should detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed due to pile driving. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

As mentioned above, marine mammal monitoring during CALTRANS' pile driving activities and weekly marine mammal observation memorandums (CALTRANS 2007; 2010) indicate that only a small number of harbor seals (a total of 16 individuals since 2006) and 1 California sea lion (a total of 1 individual in 2009) were observed within ZOIs that could result in behavioral harassment. However, the reports state that none of the animals were observed as been startled by the exposure, which could be an indication that these animals were habituated to human activities in San Francisco Bay. In addition, no harbor porpoise or gray whales were observed during pile driving activities associated to CALTRANS' SF-OBB construction work.

Marine mammal take estimates are based on marine mammal monitoring reports and marine mammal observations made during pile driving activities associated with the SF-OBB construction work authorized under prior IHAs. For pile driving activities conducted in 2006, 5 harbor seals and no other marine mammals were detected within the isopleths of 160 dB (rms) re 1 µPa during impact pile driving where air bubble curtains were deployed for mitigation measures (radius of zone of influence (ZOI) at 500 m) (CALTRANS 2007). For pile driving activities conducted in the 2008 and 2009 seasons, CALTRANS monitored a much larger ZOI of 120 dB (rms) re 1 µPa as a result of vibratory pile driving. A total of 11 harbor seals and 1 California sea lion were observed entering the 120 dB (rms) re 1 µPa ZOI (CALTRANS). However, despite the ZOI being monitored extended to 1,900 m for the 120 dB isopleths, CALTRANS did not specify which pile driving activities conducted in 2008 and 2009 used an impact hammer and which ones used a vibratory hammer. Therefore, at least some of these animals were not exposed to received level above 160 dB (rms) re µPa, and thus should not be considered as “taken” under the MMPA. No harbor porpoise or gray whales were observed during pile driving activities associated to CALTRANS' SF-OBB construction work (CALTRANS 2007; 2010).

Based on these results, and accounting for a certain level of uncertainty regarding the next phase of construction (which will include dismantling of the existing bridge by mechanical means), NMFS concludes that at maximum 50 harbor seals, 10 California sea lions, 10 harbor porpoises, and 5 gray whales could be exposed to noise levels that could cause Level B harassment as a result of the CALTRAN' SF-OBB construction activities.

Pursuant to NMFS' regulations implementing the MMPA, an applicant is required to estimate the number of animals that will be “taken” by the specified activities (i.e., takes byharassment only, or takes by harassment, injury, and/or death). This estimate informs the analysis that NMFS must perform to determine whether the activity will have a “negligible impact” on the species or stock. Level B (behavioral) harassment occurs at the level of the individual(s) and does not assume any resulting population-level consequences, though there are known avenues through which behavioral disturbance of individuals can result in population-level effects. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination.

In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS considers other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A takes, the number of estimated mortalities, and effects on habitat.

The CALTRANS' specified activities have been described based on best estimates of the planned SF-OBB construction project within the proposed project area. Some of the noises that would be generated as a result of the proposed bridge construction and dismantling project, such as impact pile driving, are high intensity. However, the in-water pile driving for the piles would use small hammers and/or vibratory pile driving methods, coupled with noise attenuation mechanism such as air bubble curtains for impact pile driving, therefore the resulting exclusion zones for potential TS are expected to be extremely small (< 35 m) from the hammer. In addition, the source levels from vibratory pile driving are expected to be below the TS onset threshold. Therefore, NMFS does not expect that any animals would receive Level A (including injury) harassment or Level B harassment in the form of TTS from being exposed to in-water pile driving associated with SF-OBB construction project.

Based on marine mammal monitoring reports under previous IHAs, only 16 harbor seals and 1 California sea lion were observed within the 120 dB (in 2008 and 2009) or 160 dB (in 2006) ZOIs during in-water pile driving since 2006. NMFS estimates that up to 50 harbor seals, 10 California sea lions, 10 harbor porpoises, and 5 gray whales could be exposed to received levels above 120 dB (rms) during vibratory pile driving or 160 dB (rms) during impact pile driving for the next season of construction activities due to the large numbers of piles to be driven and the extended zones of influence from vibratory pile driving. These are small numbers, representing 0.15% of the California stock of harbor seal population (estimated at 34,233; Carrettaet al.2010), 0.00% of the U.S. stock of California sea lion population (estimated at 238,000; Carrettaet al.2010), 0.10% of the San Francisco-Russian River stock of harbor porpoise population (estimated at 9,181; Carrettaet al.2010), and 0.05% of the Eastern North Pacific stock of gray whale population (Allen and Angliss 2010).

Animals exposed to construction noise associated with the SF-OBB construction work would be limited to Level B behavioral harassment only, i.e., the exposure of received levels for impulse noise between 160 and 180 dB (rms) re 1 μPa (from impact pile driving) and for non-impulse noise between 120 and 180 dB (rms) re 1 μPa (from vibratory pile driving). In addition, the potential behavioral responses from exposed animals are expected to be localized and short in duration.

These low intensity, localized, and short-term noise exposures (i.e., 160 dB re 1 μPa (rms) from impulse sources and 120 dB re 1 μPa (rms) from non-impulse sources), are expected to cause brief startle reactions or short-term behavioral modification by the animals. These brief reactions and behavioral changes are expected to disappear when the exposures cease. Therefore, these levels of received underwater construction noise from the proposed SF-OBB construction project are not expected to affect marine mammal annual rates of recruitment or survival. The maximum estimated 160 dB isopleths from impact pile driving is 500 m from the pile, and the estimated 120 dB maximum isopleths from vibratory pile driving is approximately 2,000 m from the pile. There is no pinniped haul-out area in the vicinity of the pile driving sites.

For the reasons discussed in this document, NMFS has determined that the impact of in-water pile driving associated with construction of the SF-OBB would result, at worst, in the Level B harassment of small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and potentially gray whales that inhabit or visit SFB in general and the vicinity of the SF-OBB in particular. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within SFB and haul-out sites (including pupping sites) and feeding areas within the Bay has led NMFS to determine that this action will have a negligible impact on California sea lion, Pacific harbor seal, harbor porpoise, and gray whale populations along the California coast.

In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document.

NMFS prepared an Environmental Assessment (EA) for the take of marine mammals incidental to construction of the East Span of the SF-OBB and made a Finding of No Significant Impact (FONSI) on November 4, 2003. Due to the modification of part of the construction project and the mitigation measures, NMFS reviewed additional information from CALTRANS regarding empirical measurements of pile driving noises for the smaller temporary piles without an air bubble curtain system and the use of vibratory pile driving. NMFS prepared a Supplemental Environmental Assessment (SEA) and analyzed the potential impacts to marine mammals that would result from the modification of the action. A Finding of No Significant Impact (FONSI) was signed on August 5, 2009. A copy of the SEA and FONSI is available upon request (seeADDRESSES).

NMFS has determined that issuance of the IHA will have no effect on listed marine mammals, as none are known to occur in the action area.

NMFS has issued an IHA to CALTRANS for the potential harassment of small numbers of harbor seals, California sea lions, harbor porpoises, and gray whales incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge in California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

This notice is published pursuant to 41 USC 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the service listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.

The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:

On 11/9/2012 (77 FR 67343-67344), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agency to furnish the product and impact of the addition on the current or most recent contractors, the Committee has determined that the product listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the product to the Government.

2. The action will result in authorizing a small entity to furnish the product to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501-8506) in connection with the product proposed for addition to the Procurement List.

Accordingly, the following product is added to the Procurement List:

With the publication of a Notice of Public Meetings in theFederal Registeron August 17, 2012 (77 FR 49784), the DoN and its cooperating agency, the Bureau of Land Management, initiated a 90-day public comment period and held three public open house meetings to receive oral and written comments on the Draft EIS/LEIS and the proposed renewal of the public land withdrawal. The 90-day public comment period ended on November 8, 2012. Public comments received by the DoN during the public comment period indicated that certain key reference materials supporting the environmental impact analysis within the Draft EIS/LEIS were not made available to the public. This notice announces the reopening of the public comment period until February 11, 2013. During this re-opened public comment period, the Draft EIS/LEIS and the additional key reference materials are available for public review at the following libraries:

1. Ridgecrest Public Library, 131 East Las Flores Avenue, Ridgecrest, California 93555.

2. Trona Branch Library, 82805 Mount View, Trona, California 93562.

3. Lone Pine Branch Library, 127 Bush Street, Lone Pine, California 93545.

4. Barstow Branch Library, 304 East Buena Vista Street, Barstow, California 92311.

5. Mojave Public Library, 16916-1/2 State Highway 14, Space D2, Mojave, California 93501.

6. Lancaster Public Library, 601 West Lancaster Boulevard, Lancaster, California 93534.

A paper copy of the Executive Summary or a single compact disc of the Draft EIS/LEIS and additional key reference materials will be made available upon written request.

Federal, state and local agencies and officials, and interested groups and individuals are encouraged to review the key reference documents and provide written comments to the mailing address or through the project web site, both identified immediately below. All comments, whether written or submitted through the project web site during the re-opened public comment period, will become part of the public record on the Draft EIS/LEIS and be considered in preparing the Final EIS/LEIS.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection:Impact Evaluation of Math Professional Development.

OMB Control Number:1850-NEW.

Type of Review:New information collection.

Respondents/Affected Public:State, Local, or Tribal Governments.

Total Estimated Number of Annual Responses:1,260.

Total Estimated Number of Annual Burden Hours:2,211.

Abstract:This package requests clearance to recruit and collect data from districts, schools, and teachers for a study of math professional development. The study will provide important information about the implementation and impact of intensive, content-focused professional development on fourth grade teachers' content knowledge, classroom practice, and their students' achievement. The evaluation has an experimental design with teacher-level random assignment of a volunteer sample of approximately 200 fourth grade teachers in six districts to receive either the study's Professional Development (PD) or the district's “business-as-usual” PD. Findings will be presented in a final report scheduled for release in February 2016.

1.Submitting CBI.Do not submit this information to the EPA throughwww.regulations.govor email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2.Tips for Preparing Your Comments.When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading,Federal Registerdate and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

Two sections of the Clean Air Act govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in her “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which * * * [the Administrator] plans to issue air quality criteria * * *”. Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air * * *” 42 U.S.C. 7408(b). Under section 109 (42 U.S.C. 7409), the EPA establishes primary (health-based) and secondary (welfare-based) NAAQS for pollutants for which air quality criteria are issued. Section 109(d) requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and, if appropriate, revise the NAAQS, based on the revised air quality criteria. Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria * * * and the national primary and secondary ambient air quality standards * * * and shall recommend to the Administrator any new * * * standards and revisions of existing criteria and standards as may be appropriate * * *.” Since the early 1980's, this independent review function has been performed by the Clean Air Scientific Advisory Committee (CASAC).

Presently, EPA is reviewing the air quality criteria and NAAQS for Pb. The EPA's overall plan and schedule for this review is presented in theIntegrated Review Plan for the Lead National Ambient Air Quality Standards. 1 The draft PA document announced today, when final, will serve to “bridge the gap” between the scientific information and the judgments required of the Administrator in determining whether to retain or revise the existing NAAQS for Pb, and, if revision is considered, what revisions may be appropriate. The draft PA builds upon information presented in the third draftIntegrated Science Assessment for Lead 2 and health and ecological risk assessments developed in the last review.3 The draft PA will be available on or about January 8, 2013, through the agency's Technology Transfer Network (TTN) Web site athttp://www.epa.gov/ttn/naaqs/standards/pb/s_pb_index.html.

The EPA is soliciting advice and recommendations from the CASAC by means of a review of this draft document at an upcoming public meeting of the CASAC. Information about this public meeting, including the dates and location, will be published as a separate notice in theFederal Register. Following the CASAC meeting, the EPA will consider comments received from the CASAC and the public in preparing revisions to this document. The EPA will consider public comments submitted in response to this notice when revising the documents. Comments should be submitted to the docket, as described above. The document that is the subject of today's notice does not represent and should not be construed to represent any final EPA policy, viewpoint, or determination.

Pavillion, Wyoming is located in Fremont County, about 20 miles northwest of Riverton. The concern at the site is potential ground water contamination, based on resident complaints about smells, tastes, and adverse changes in water quality of their domestic wells. In collaboration with ORD, Region 8 has been conducting a ground water investigation. The purpose of this ground water investigation is to better understand the basic ground water hydrology and how the constituents of concern may be occurring in the aquifer. More information is available athttp://www.epa.gov/region8/superfund/wy/pavillion/.

Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2011-0895, by one of the following methods:

•http://www.regulations.gov:Follow the on-line instructions for submitting comments.

•Email: ORD.Docket@epa.gov.

•Facsimile:202-566-1753.

•Mail:Office of Environmental Information Docket (Mail Code: 2822T), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460. The telephone number is 202-566-1752. If you provide comments by mail, please submit one unbound original with pages numbered consecutively, and three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.

•Hand Delivery:The OEI Docket is located in the EPA Headquarters Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202-566-1744. Deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. If you provide comments by hand delivery, please submit one unbound original with pages numbered consecutively, and three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.

Instructions:Direct your comments to Docket ID No. EPA-HQ-ORD-2011-0895. Please ensure that your comments are submitted within the specified comment period. It is the EPA's policy to include all comments it receives in the public docket without change and to make the comments available online athttp://www.regulations.gov, including any personal information provided, unless comments include information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughhttp://www.regulations.govor email. Thehttp://www.regulations.govWeb site is an “anonymous access” system, which means that EPA will not know your identity or contact information unless you provide it in the body of your comments. If you send email comments directly to the EPA without going throughhttp://www.regulations.gov, your email address will be automatically captured and included as part of the comments that are placed in the public docket and made available on the Internet. If you submit electronic comments, the EPA recommends that you include your name and other contact information in the body of your comments and with any disk or CD-ROM you submit. If the EPA cannot read your comments due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comments. Electronic files should avoid the use of special characters and any form of encryption and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.

Docket:All documents in the docket are listed in thehttp://www.regulations.gov index.Although listed in the index, some information is not publicly available,e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material,will be publicly available only in hard copy. Publicly available docket materials are available either electronically athttp://www.regulations.govor in hard copy at the OEI Docket in the EPA Headquarters Docket Center.

As of October 1, 2012, EPA will not accept paper copies orCDs of EISs for filing purposes; all submissions on or afterOctober 1, 2012 must be made through e-NEPA.

While this system eliminates the need to submit paper or CD copiesto EPA to meet filing requirements, electronic submission does notchange requirements for distribution of EISs for public review andcomment. To begin using e-NEPA, you must first register with EPA'selectronic reporting site—https://cdx.epa.gov/epa_home.asp.

EIS No. 20130001, Draft Supplement, BLM, AK,Hardrock Mineral Leasing in the White MountainsNational Recreation Area, Supplement to theEastern Interior Draft Resource Management Plan,AK, Comment Period Ends: 04/11/2013, Contact:Jeanie Cole 907-474-2340.

EIS No. 20130002, Draft EIS, BIA, CA,Shu'Luuk Wind Project, Campo Indian Reservation,Lease Approval, San Diego County, CA, CommentPeriod Ends: 02/25/2013, Contact: Lenore Lamb951-276-6625 ext. 254.

Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis of Proposed Consent Order to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for January 3, 2013), on the World Wide Web, athttp://www.ftc.gov/os/actions.shtm. A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue NW., Washington, DC 20580, either in person or by calling (202) 326-2222.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before February 4, 2013. Write “Motorola/Google, File No. 121-0120” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, athttp://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due toheightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it athttps://ftcpublic.commentworks.com/ftc/motorolagoogleconsentby following the instructions on the web-based form. If this Notice appears athttp://regulations.gov#!home,you also may file a comment through that Web site.

If you file your comment on paper, write “Motorola/Google, File No. 121-0120” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site athttp://www.ftc.govto read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before February 4, 2013. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, athttp://www.ftc.gov/ftc/privacy.htm.

The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Agreement”) with Motorola Mobility LLC (formerly Motorola Mobility, Inc. (“Motorola”), a wholly-owned subsidiary of Respondent Google Inc.), and Google Inc. (“Google”), which is designed to settle allegations that Motorola and Google violated Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, by engaging in unfair methods of competition and unfair acts or practices relating to the licensing of standard essential patents (“SEPs”) for cellular, video codec, and wireless LAN standards. The Complaint alleges that, after committing to license the SEPs on fair, reasonable, and non-discriminatory (“FRAND”) terms Motorola sought injunctions and exclusion orders against willing licensees, undermining the procompetitive standard-setting process. After purchasing Motorola for $12.5 billion in June 2012, Google continued Motorola's anticompetitive behavior.

The Proposed Consent Order has been placed on the public record for thirty (30) days for comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the Agreement and the comments received and will decide whether it should withdraw from the Agreement or make final the Agreement's Proposed Consent Order.

The purpose of this analysis is to facilitate comments on the Proposed Consent Order. This analysis does not constitute an official interpretation of the Proposed Consent Order, and does not modify its terms in any way. The Agreement has been entered into for settlement purposes only and does not constitute an admission by Motorola or Google that the law has been violated as alleged or that the facts alleged, other than jurisdictional facts, are true.

American consumers rely on standardized technology for the interoperability of consumer electronics and other products. Manufacturers of these products participate in standard-setting organizations (“SSOs”) such as the European Telecommunications Standards Institute (“ETSI”), the Institute of Electrical and Electronics Engineers (“IEEE”), and the International Telecommunication Union (“ITU”) that agree upon and develop standards based on shared technologies that incorporate patents. SSOs and the standards they promulgate have procompetitive benefits; they encourage common technological platforms that many different manufacturers ultimately incorporate into their respective products.2 Standards foster competition among these manufacturers' products and facilitate the entry of related products. Overall, standards benefit the market by encouraging compatibility among all products, promoting interoperability of competing devices, and lowering the costs of products for consumers.

Many SSOs require that a firm make a licensing commitment, such as a FRAND commitment, in order for its patented technology to be included in a standard. SSOs have this policy because the incorporation of patented technology into a standard induces market reliance on that patent and increases its value. After manufacturers implement a standard, they can become “locked-in” to the standard and face substantial switching costs if they must abandon initial designs and substitute different technologies. This allows SEP holders to demand terms that reflect not only “the value conferred by the patent itself,” but also “the additional value—the hold-up value—conferred by the patent's being designated as standard-essential.”3 The FRAND commitment is a promise intended to mitigate the potential for patent hold-up.4 In other words, it restrains the exercise of market power gained by a firm when its patent is included in a standard and the standard is widely adopted in the market.5

Despite the significant procompetitive benefits of standard setting, particularly the interoperability of technology that arises from efficient and effective standards, standard setting is a collaborative process among competitors that often displaces free market competition in technology platforms. FRAND commitments by SSO members are critical to offsetting the potential anticompetitive effects of such agreements while preserving the procompetitive aspects of standard setting.

Seeking and threatening injunctions against willing licensees of FRAND-encumbered SEPs undermines the integrity and efficiency of the standard-setting process and decreases the incentives to participate in the process and implement published standards. Such conduct reduces the value of standard setting, as firms will be less likely to rely on the standard-setting process. Implementers wary of the risk of patent hold-up may diminish or abandon entirely their participation in the standard-setting process and theirreliance on standards. If firms forego participation in the standard-setting process, consumers will no longer enjoy the benefits of interoperability that arise from standard setting, manufacturers have less incentive to innovate and differentiate product offerings, and new manufacturers will be deterred from entering the market.

Motorola sought to exploit the market power that it acquired through the standard-setting process by breaching its promises to license its SEPs on FRAND terms. ETSI, ITU, and IEEE require that firms disclose whether they will commit to license their SEPs on FRAND terms in order for the SSO to decide if the patents should be included in the relevant cellular, video codec, or wireless LAN standards. Motorola promised to license its patents essential to these standards on FRAND terms, inducing ETSI, ITU, and IEEE to include its patents in cellular, video codec, and wireless LAN standards. These commitments created express and implied contracts with the SSOs and their members. In acquiring Motorola and its patent portfolio, Google affirmatively declared that it would honor Motorola's FRAND commitments.6

Relying on Motorola's promise to license its SEPs on FRAND terms, electronic device manufacturers implemented the relevant standards and were locked-in to using Motorola's patents. Motorola then violated the FRAND commitments made to ETSI, ITU, and IEEE by seeking, or threatening, to enjoin certain competitors from marketing and selling products compliant with the relevant standards, like the iPhone and the Xbox, from the market unless the competitor paid higher royalty rates or made other concessions. At all times relevant to the allegations in the Proposed Complaint, these competitors—Microsoft and Apple—were willing to license Motorola's SEPs on FRAND terms.

Specifically, Motorola threatened exclusion orders and injunctions in various forums against these willing licensees. Motorola filed patent infringement claims at the ITC where the only remedy for patent infringement is an exclusion order. Because of the ITC's remedial structure, filing for an exclusion order before the ITC on a FRAND-encumbered SEP significantly raises the risk of patent hold-up in concurrent licensing negotiations because an exclusion order may be entered by the ITC before a FRAND rate is reached. Motorola also filed for injunctive relief in various federal district courts, which also raises the risk of patent hold-up.

Had Google been successful in obtaining either an injunction or exclusion order against its competitors' products, it could have imposed a wide variety of costs to consumers and competition. These products could have been kept off the market entirely, diminishing competition and denying consumers access to products they wish to purchase, such as the iPhone and Xbox. Alternatively, Google's conduct might have increased prices because manufacturers, when faced with the threat of an injunction, are likely to surrender to higher royalty rates for SEPs. Other manufacturers, deterred by increased licensing fees, might exit the market altogether, or limit their product lines. In the end, prices would likely rise both because of higher royalties and because of less product-market competition. Ultimately, end consumers may bear some share of these higher costs, either in the form of higher prices or lower quality products.

Consumers would also suffer to the extent that Google's conduct impaired the efficacy of the standard-setting process or diminished the willingness of firms to participate in standard- setting processes. Relatedly, such FRAND violations may diminish the interest of SSOs in using new patented technologies—a step that could reduce the technical merit of those standards as well as their ultimate value to consumers. This could result in increased costs or inferior standards. Innovation by implementers would suffer and consumers would lose the benefits of lower costs, interoperability, and rapid technological development that efficient standard-setting enables.

The Proposed Complaint alleges that Motorola and Google's conduct violates Section 5 of the FTC Act, both as an unfair method of competition and an unfair act or practice.

Google and Motorola's conduct constitute an unfair method of competition and harms competition by threatening to undermine the integrity and efficiency of the standard-setting process. FRAND commitments help ensure the efficacy of the standard-setting process and that the outcome of that process is procompetitive. Conversely, that process is undermined when those promises are reneged. Motorola's conduct threatens to increase prices and reduce the quality of products on the market and to deter firms from entering the market. Moreover, Motorola's conduct threatens to deny consumers the many procompetitive benefits that standard setting makes possible. Motorola's conduct may deter manufacturers from participating in the standard setting process and relying on standards, and SSOs from adopting standards that incorporate patented technologies.

Consistent with these principles, courts have found that patent holders may injure competition by breaching FRAND commitments they made to induce SSOs to standardize their patented technologies.7 Each of these cases, brought under Section 2 of the Sherman Act, involved allegations of bad faith or deceptive conduct by the patent holder before the standard was adopted. However, under its stand-alone Section 5 authority, the Commission can reach opportunistic conduct that takes place after a standard is adopted that tends to harm consumers and undermine the standard-setting process.”8 For example, inNegotiated Data Solutions, LLC(“N-Data”),9 the Commission condemned similar conduct as “inherently `coercive' and `oppressive.' ”10 The respondent, N-Data, acquired SEPs from a patent holder that had committed to license them to any requesting party for a one-time flat fee of $1,000. After it acquired these SEPs, N-Data reneged on this licensing commitment. “Instead, N-Data threatened to initiate, and in some cases prosecuted, legal actions against companies refusing to pay its royalty demands, which [were] far in excess of [the $1,000 one-time flat fee].”11 The Commission found that N-Data's “effortsto exploit the power it enjoy[ed] over those practicing the [relevant] standard and lacking any practical alternatives” were inherently “coercive” and “oppressive” as these firms were, “as a practical matter, locked into [the] standard.”12 As here, the Commission found that N-Data's opportunistic breach of its licensing commitment had the tendency of leading to higher prices for consumers and undermining the standard-setting process.

Google and MMI's opportunistic violations of their FRAND commitments have the potential to harm consumers by excluding products from the market as a result of an injunction or by leading to higher prices because manufacturers are forced, by the threat of an injunction, to pay higher royalty rates. As explained inN-Data,courts have traditionally viewed opportunistic breaches as conduct devoid of countervailing benefits.13 As Judge Posner has explained, when a promisor breaches opportunistically, “we might as well throw the book at the promisor. * * * Such conduct has no economic justification and ought simply to be deterred.”14 As inN-Data,“the context here is in standard-setting,” and “[a] mere departure from a previous licensing commitment is unlikely to constitute an unfair method of competition under Section 5.”15

Google and Motorola's violations of their FRAND commitments also constitute unfair acts or practices under Section 5 because they are “likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”16 If these practices continue, consumers will likely pay higher prices because many consumer electronics manufacturers will pass on some portion of unreasonable or discriminatory royalties they agree to pay to avoid an injunction or exclusion order. Consumers will not be able to avoid this injury, due to the industry-wide lock-in induced by Motorola's FRAND commitments. Moreover, this practice has no apparent “countervailing benefits,” either to those upon whom demands have been made, or to ultimate consumers, or to competition.17

The Proposed Consent Order is tailored to prevent Google—through its wholly owned subsidiary, Motorola—from using injunctions or threats of injunctions against current or future potential licensees who are willing to accept a license on FRAND terms. Under this Order, before seeking an injunction on FRAND-encumbered SEPs, Google must: (1) Provide a potential licensee with a written offer containing all of the material license terms necessary to license its SEPs, and (2) provide a potential licensee with an offer of binding arbitration to determine the terms of a license that are not agreed upon. Furthermore, if a potential licensee seeks judicial relief for a FRAND determination, Google must not seek an injunction during the pendency of the proceeding, including appeals. Nothing in the Order limits Google or a potential licensee from challenging the validity, essentiality, claim of infringement or value of the patents at issue, and either party may object to a court action on jurisdictional or justiciability grounds, or on the ground that an alternative forum would be more appropriate. The Proposed Consent Order also does not prevent Google from pursuing legal claims regarding its FRAND-encumbered SEPs other than a claim for injunctive relief, such as an action seeking damages for patent infringement. The Order does not define FRAND but requires Google to offer, and follow, specific procedures that will lead to that determination.

The Proposed Consent Order prohibits Google from revoking or rescinding any FRAND commitment that it has made or assumed unless the relevant standard no longer exists, Google no longer owns the SEPs encumbered by the FRAND commitment, or such SEPs are no longer enforceable. Motorola made FRAND commitments on the understanding that they were irrevocable, and Google, in acquiring Motorola's FRAND-encumbered SEPs, must continue to honor those agreements.

The Proposed Consent Order further prohibits Google and Motorola from continuing or enforcing existing claims for injunctive relief based on FRAND-encumbered SEPs. Google and Motorola are similarly prohibited from bringing future claims for injunctive relief based on FRAND-encumbered SEPs. For both current and future claims for injunctive relief, Google and Motorola must follow specific negotiation procedures, described below, that are intended to protect the interests of potential willing licensees while allowing Google and Motorola to seek injunctions only after the licensee refuses to engage in the negotiation process. However, if a potential licensee indisputably demonstrates that it is not willing to pay Google a reasonable fee for use of Google's FRAND-encumbered SEPs, Google is permitted by this Order to seek injunctive relief.

Outside the processes outlined in the Order, Google is permitted to seek injunctive relief only in the following four narrowly-defined circumstances: (1) The potential licensee is not subject to United States jurisdiction; (2) the potential licensee has stated in writing or in sworn testimony that it will not accept a license for Google's FRAND-encumbered SEPs on any terms; (3) the potential licensee refuses to enter a license agreement for Google's FRAND-encumbered SEPs on terms set for the parties by a court or through binding arbitration; or (4) the potential licensee fails to assure Google that it is willing to accept a license on FRAND terms. The Proposed Consent Order providesGoogle with a form letter, attached to the Proposed Consent Order as Exhibit B, for requesting a potential licensee to affirm that it is willing to pay a FRAND rate for Google's FRAND-encumbered SEPs, and Google must provide a copy of the Proposed Consent Order along with the form letter. Google may not, however, seek an injunction simply because the potential licensee challenges the validity, value, infringement or essentiality of Google's FRAND-encumbered patents.

The Proposed Consent Order provides potential licensees with two avenues for resolving licensing disputes that involve Google's FRAND-encumbered SEPs. The first is a framework for resolution that a potential licensee may voluntarily elect. Under this path, Google and the potential licensee agree to negotiate the terms of the license for at least six (6) months (unless a license agreement is reached sooner); after the negotiation period concludes, Google may offer a license agreement, or, if the potential licensee requests a license after this negotiation period, Google must provide a proposed license within two months of the request. Google's proposed license agreement must be a binding, written offer that contains all material terms and limitations. Under this procedure, the potential licensee either accepts the proposed license or informs Google of the terms that it accept and the terms that it believes are inconsistent with Google's FRAND commitments; for each term that it disagrees with, the potential licensee must provide an alternative term that it believes is consistent with Google's FRAND commitment. The potential licensee may then go to court for a FRAND determination or propose binding arbitration to resolve the disputed provisions of Google's proposed license agreement. If a court decides that it cannot resolve the disputed terms, the parties are to go to binding arbitration to finalize the terms of the license agreement.

In the event that the potential licensee does not choose to pursue the path set forth above for resolving the licensing dispute, Google is nevertheless prohibited from seeking injunctive relief unless it takes the following steps. At least six months before seeking an injunction, Google must provide the potential licensee with the Proposed Consent Order and an offer to license Google's FRAND-encumbered patents containing all material terms; Google's offer may require that the potential licensee in turn offer Google a license for the potential licensee's FRAND-encumbered SEPs within the same standard. If no agreement is reached, at least sixty days before initiating a claim for injunctive relief, Google must offer the potential licensee the option to enter binding arbitration to determine the terms of a license agreement between the parties. The Proposed Consent Order describes the terms and conditions that Google must follow should the potential licensee accept the offer for binding arbitration, although the parties are free to agree to their own terms. Google's license offers will be irrevocable until it makes the offer to arbitrate, and Google's offers to arbitrate will be irrevocable until thirty (30) days after Google files for injunctive relief.

Under these provisions, if the potential licensee seeks a court's determination of a FRAND-license-rate between the parties instead of accepting Google's offer to arbitrate, Google may not file for injunctive relief as long as the potential licensee goes to court within seven (7) months of Google providing a license offer, or within three months of Google's offer to arbitrate. But the potential licensee must, in connection with its court action, provide Google with assurances that it will abide by the license terms set by the court and pay royalties based on a final court determination or Google will be free to seek injunctive relief. The Proposed Consent Order provides Google with a form letter, attached as Exhibit A, for requesting that the potential licensee agree to be bound by the court's FRAND determination.

Under the terms of the Proposed Consent Order, Google retains the option to file for injunctive relief against a potential licensee that itself files a claim for injunctive relief against Google based on the potential licensee's FRAND-encumbered SEPs, unless that potential licensee has followed the procedures similar to those set out by the Proposed Consent Order for Google.

Finally, the Proposed Consent Order prohibits Google from selling or assigning its FRAND-encumbered SEPs to third parties unless those parties agree to assume Google's FRAND commitments, abide by the terms of the Proposed Consent Order, and condition any further sale or assignment of Google's FRAND-encumbered SEPs on the same.

In sum, the Proposed Consent Order improves upon the commitments made by Google in February 2012 to ETSI, IEEE, and ITU to honor Motorola's prior FRAND assurances and limit its pursuit of injunctive relief in connection with Motorola's SEPs by providing clear mechanisms for Google to do so. The Order also clarifies and defines Google's FRAND commitments by prohibiting Google from seeking injunctive relief against implementers who are willing to license Google's SEPs. The Proposed Consent Order also contains standard reporting, notification, and access provisions designed to allow the Commission to monitor compliance. It terminates ten (10) years after the date the Order becomes final.

A majority of the Commission has voted today to issue a Complaint and Order against Google Inc. (“Google”) to remedy Google's breaking the commitments of Motorola Mobility, Inc. (“MMI”) to license standard-essential patents (“SEPs”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). Google succeeded to MMI's FRAND commitments when it acquired MMI. Google has agreed in a consent decree not to seek an injunction against infringement of those SEPs and instead to license the SEPs on the FRAND terms to which MMI agreed. I concur in the Commission's decision to issue the Complaint and Order against Google. I issue this Separate Statement for four reasons.18

First,I do not agree with the Complaint's allegation or the majority's assertion that an injunction enforcing SEPs would constitute “patent hold-up.” (Compl. ¶¶ 2, 13-14, 19; Commission Statement at 2-3.) That allegation is superfluous. It does not add anything to the Commission's competition mission or jurisprudence. To the contrary, proof of such an allegation would only burden the staff, adding an element that the staff need not prove. There is increasing judicial recognition, coinciding with my own view, that a seeking an injunction is inherently antithetical to a commitment instead to license patents on fair, reasonable, and non-discriminatory terms.19 Indeed, the Complaint itselfdescribes Google's conduct at issue as being simply a breach of a commitment to license its SEPs on FRAND terms. (Compl. ¶ 1, 25-27.) In other words, the concept of “patent hold up” has nothing to do with Google's conduct. It is a construct that applies as a matter of theory.

Second,while the majority correctly asserts that the proposed Complaint in this matter alleges that Google's practices in seeking an injunction “constitute unfair methods of competition and unfair acts or practices, in violation of Section 5” of the FTC Act, the lion's share of the Commission's Statement, as well as the Complaint, is devoted to analysis of Google's conduct as a “standalone” unfair method of competition claim under Section 5. (Commission Statement at 1-3.) I would have given equal prominence to the unfair acts and practices claim.

“Unfair acts or practices” claims based on alleged breaches of contract have repeatedly been made by the Commission.Orkin Exterminating Co.,108 F.T.C. 263 (1986),aff'd, Orkin Exterminating Co.v.FTC,849 F.2d 1354 (11th Cir. 1988);Negotiated Data Solutions LLC (N-Data),73 Fed. Reg. 5,846 (FTC 2008) (aid to public comment);see also C&D Electronics, Inc.,109 F.T.C. 72 (1987).

Moreover, the Commission has brought a number of consumer protection cases involving petitioning activity.See, e.g., Spiegel, Inc.v.FTC,540 F.2d 287 (7th Cir. 1976) (upholding the Commission's finding that the filing of lawsuits in distant locations was an unfair act);J.C. Penny Co.,109 F.T.C. 54 (1987) (consent decree resolving similar concerns).Noerrwas neither raised nor held to apply in these cases.

There is reason to believe that seeking an injunction on a SEP would be a breach of contract actionable as an unfair act or practice.20 More specifically, when there is a SEP, a FRAND commitment is given by the owner of the SEP in exchange for inclusion of the SEP in the standard, and seeking an injunction instead of a license if there is infringement of the SEP is a breach of that FRAND commitment.

That conclusion is not contrary to the Supreme Court's decision ineBay, Inc.v.MercExchange LLC,547 U.S. 388 (2006). To be sure, a majority of the Supreme Court declined to rule in that case that injunctions were never permitted as a matter of law.See id.at 393-94. But a SEP was not involved in that case.

The lack of any allegations in the Complaint of injury to consumers to date does not undercut the “unfair acts or practices” claim. (Compl. ¶¶ 4, 30.) Both Section 5(n) of the FTC Act and our Unfairness Policy Statement treat as an “unfair act or practice” any practice that not only actually harms consumers but also any practice that is “likely” to do so. 15 U.S.C. 45(n);Int'l Harvester Co.,104 F.T.C. 949, 1070 (1984). Here, there is “reason to believe” that an injunction would “likely” harm consumers in the fashion described inC&D Electronicseven if it did not actually do so. 109 F.T.C. at 80 (separate statement of Chairman Daniel Oliver: “[T]he activity here may provide disincentives that will result in services not being available to consumers at all.”). The Complaint alleges, for example, that Google's conduct has a tendency to exclude products from the market, to cause higher consumer prices, and to diminish innovation. (Compl. ¶¶ 3, 28.)

If seeking injunctive relief were not challenged under the “unfair acts or practices” prong of Section 5, that would leave the “unfair methods of competition” prong as the only basis of liability. As discussed below, my colleagues and I disagree on which, if any, principles ought to limit liability based on that theory. My dissent to the consent decree in the Bosch case21 was mainly based on that decree's treatment of “unfair methods of competition” as the sole basis of liability and the mischief that might cause.

Third,I do not agree to invoke a standalone unfair methods of competition claim under Section 5 because it is not clear what the “limiting principles” of such a claim would be. I joined Chairman Leibowitz in pleading a similarly unlimited claim in the Intel case.SeeStatement of Chairman Leibowitz and Commissioner Rosch, Intel Corporation, Docket No. 9341 (Dec. 16, 2009). But, at the time, I identified several “limiting principles” on our Section 5 authority.SeeConcurring and Dissenting Statement of Commissioner J. Thomas Rosch, Intel Corporation, Docket No. 9341 (Dec. 16, 2009);see also Boise Cascadev.FTC,637 F.2d 573 (9th Cir. 1980);Official Airline Guidesv.FTC,630 F.2d 920 (2d Cir. 1980);E.I. duPont de Nemours & Co.v.FTC,729 F.2d 128 (2d Cir. 1984).

Since that time, I have described several other “limiting principles” that should be considered.22 For example, the requirement that a respondent have monopoly or near-monopoly power provides a limiting principle for the standalone use of Section 5 unfair methods of competition claims that the Commission could defend in an appellate court; it would also not unsettle “settled principles of Section 2 law” as defined by the Supreme Court case law under Section 2,see, e.g., Verizon Commc'ns Inc.v.Law Offices of Curtis V. Trinko, LLP,540 U.S. 398, 407 (2004);Spectrum Sports, Inc.v.McQuillan,506 U.S. 447, 458-59 (1993), as well as the language of Section 2 itself. Absent those limiting principles, which are not identified in the Complaint, I think Section 5 is not properly circumscribed.

To be sure, the potential anticompetitive harm that is threatened when injunctive relief is sought for alleged infringement of an SEP may be especially pernicious: a false FRAND commitment not only may cripple competition for inclusion in the standard (so-called “ex ante competition”); it may also cripple competition among those using the standard (so-called “ex post” competition).See Broadcom Corp.v.Qualcom, Inc.,501 F.3d 297 (3d Cir. 2007).This may be a limiting principle. But the Complaint does not allege thatstandalone Section 5 actions are limited to especially pernicious practices, let alone the practices at issue here.

Beyond that, the Commission, with its expertise in identifying deception, brings something to the analysis that others cannot bring. As Commissioner and former Chairman Bill Kovacic observed, the FTC is a better competition agency because of its consumer protection mission.23 The fact that the Commission has a comparative advantage in identifying deception might also be a second “limiting principle.” But the Complaint does not allege that either.

The Complaint does allege that Google has monopoly power. (Compl. ¶ 21.) But the Complaint does not allege monopoly power as a limitation on the Commission's use of a standalone Section 5 unfair methods of competition claim.SeeConcurring and Dissenting Statement of Commissioner Rosch, Intel Corp., FTC Docket No. 9341 (Dec. 16, 2009),available at http://www.ftc.gov/os/adjpro/d9341/091216intelstatement.pdf.This might be understandable if Google faced treble damage liability in a private action under Section 5 as long as there was any chance that Google would face an unlimited standalone Section 5 unfair competition claim. But Section 5 belongs to the Commission and the Commission alone, and even the Commission cannot seek treble damages for a standalone Section 5 unfair methods of competition violation.24

Fourth,I object to language in the Agreement Containing Consent Order that is tantamount to a denial of liability. Specifically, Google has refused to admit any facts other than jurisdictional facts and has refused to admit that a violation of the law has occurred. (ACCO ¶¶ 2, 4.) As I have previously explained,25 the Commission should require respondents either to admit or to “neither admit nor deny” liability in Commission consent decrees, and this change should be reflected in the Commission's Rules of Practice.SeeRule 2.32, 16 CFR 2.32.

I voted against this consent agreement and dissent from imposing liability on an owner of a standard essential patent (“SEP”) merely for petitioning the courts or the International Trade Commission (“ITC”). The Commission announced this enforcement policy inIn re Robert Bosch GmbH,stating that in “appropriate circumstances” it will sue patent holders for seeking injunctive relief against “willing licensees” of a SEP.26 I dissented then in large part because I question whether such conduct, standing alone, violates Section 527 and because theNoerr-Penningtondoctrine28 precludes Section 5 liability for conduct grounded in the legitimate pursuit of an injunction29 or any threats incidental to it,30 outside of a handful of well-established exceptions not alleged there. Not only does today's decision raise many of the same concerns for me as didBosch, 31 the Commission is now expanding its new policy to impose both competition and consumer protection liability on Google for the same type of conduct alleged inBosch. 32

Because I fear the legacy of our actions in this area will be greater uncertainty for patent holders about their contractual obligations, intellectual property protections, and Constitutional rights, as well as conflict between the Commission and other institutions with authority in these matters, I decline to join in another undisciplined expansion of Section 5. I outline my chief concerns below.

First,the Commission is offering ambiguous guidance to market participants.33 Although I believe strongly the courts and other stakeholders are generally better suited to define the use and treatment of SEPs,34 if the Commission insists oninterposing itself here it should at least offer a clear position. However, the majority says little about what “appropriate circumstances” may trigger an FTC lawsuit other than to say that a fair, reasonable, and non-discriminatory (“FRAND”) commitment generally prohibits seeking an injunction.35 By articulating only narrow circumstances when the Commission deems a licensee unwilling (limitations added sinceBosch),36 and not addressing the ambiguity in the market about what constitutes a FRAND commitment, the Commission will leave patent owners to guess in most circumstances whether they can safely seek an injunction on a SEP. Moreover, the Commission gives no principled basis for expanding liability beyond an unfair method of competition to include an “unfair act or practice” on what is essentially the same conduct here as inBosch.This expansion of liability sows additional seeds of confusion as to what can create liability and even the statutory basis of that liability.37

Second,the consent agreement creates doctrinal confusion. The Order contradicts the decisions of federal courts, standard-setting organizations (“SSOs”), and other stakeholders about the availability of injunctive relief on SEPs and the meaning of concepts like willing licensee and FRAND. For example, the Complaint alleges that Google breached its SSO commitments by seeking injunctive relief on its SEPs.38 However, a federal judge in the Western District of Wisconsin held Motorola did not breach its contract with two of the relevant SSOs:

There is no language in either the ETSI or IEEE contracts suggesting that Motorola and the standards-setting organizations intended or agreed to prohibit Motorola from seeking injunctive relief. In fact, both policies are silent on the question of injunctive relief. Moreover, in light of the fact that patent owners generally have the right to seek injunctive relief both in district courts, 35 U.S.C. 283, and in the International Trade Commission, 19 U.S.C. 1337(d), I conclude that any contract purportedly depriving a patent owner of that right should clearly do so. The contracts at issue are not clear. Therefore, I conclude that Motorola did not breach its contracts simply by requesting an injunction and exclusionary order in its patent infringement actions.39

The Commission also treats Apple as a willing licensee, disregarding a federal judge's decision that Apple revealed itself as unwilling on the eve of trial.40 As the judge wrote: “[Apple's intentions] became clear only when Apple informed the court * * * that it did not intend to be bound by any rate that the court determined.”41 The judge further concluded Apple was trying to use the FRAND rate litigation simply to determine “a ceiling on the potential license rate that it could use for negotiating purposes * * * .”42

In light of this decision, the majority is walking a fine line to claim Google should not be able to seek injunctive relief on these facts. The Order allows Google to seek injunctive relief if a party “has stated in writing or in sworn testimony that it will not license the FRAND Patent on any terms”—as Apple did in federal district court.43 But the Complaint attempts to skirt this issue by vaguely claiming that “[a]t all timesrelevant to this Complaint,these implementers [including Apple] were willing licensees * * * .”44 I believe it is quite “relevant” that Apple told a federal judge after years of negotiation and litigation with Motorola that it would only abide by the court-determined royalty rates to the extent it saw fit.45 I cannot endorse characterizing this conduct as that of a willing licensee and in so doing contradict the finding of a federal judge and create further confusion about the meaning of the term.

Third,the allegations in the complaint that Google and Motorola's conduct constitutes an “unfair act or practice” fail this agency's unfairness standard. To show an unfair act or practice, the Commission must prove that the challenged conduct “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”46 In this matter, we are essentially treating sophisticated technology companies, rather than end-users, as “consumers” under our consumer protection authority. That runs counter to the historical, and in my view correct, approach that we have taken in pursuing our consumer protection mission, which is to protectend users of products or services. Departing from this approach makes the FTC into a general overseer of all business disputes simply on the conjecture that a dispute between two large businesses may affect consumer prices, which is a great expansion of our role and is far afield from our mission of protecting consumers. Further, the unfairness count in the complaint alleges merely speculative consumer harm, at best, and thus fails to comply with the Commission's Unfairness Statement.47

Fourth,even taking the much-criticizedN-Dataconsent decree as a starting point, it is unclear whether this case meets the requirements identified by the Commission in that matter. InN-Data,the Commission alleged that there was a clear promise to license by N-Data's predecessor-in-interest, which N-Data subsequently broke.48 The evidence presented to me in the instant matter does not reveal a clear promise by Motorola not to seek an injunction on the SEPs at issue and at least one court has found there was no such promise. Nor does there appear to have been any reasonable expectation on the part of members of the relevant SSOs—the Institute of Electrical and Electronics Engineers (“IEEE”), the European Telecommunications Standards Institute (“ETSI”), and the International Telecommunications Union (“ITU”)—that SEP holders, including Google and Motorola, had waived their right to seek injunctions on their SEPs. At least one of the SSOs at issue in this matter, ETSI, went so far as to explicitly reject an outright ban on injunctions.49 And the one federal court that has issued an injunction against what appears to have been a willing licensee on a RAND-encumbered patent (not identified expressly as a SEP but a core technology embodied in the standards) did so five years ago on the 802.11a and 802.11g IEEE-adopted wireless local area network standards.50 Thus, it should have been a reasonable expectation since that time to IEEE members (including the affected parties here) that an injunction could issue in certain situations even on a RAND-encumbered SEP against a potentially-willing licensee.

In sum, I disagree with my colleagues about whether the alleged conduct violates Section 5 but, more importantly, believe the Commission's actions fail to provide meaningful limiting principles regarding what is a Section 5 violation in the standard-setting context, as evidenced by its shifting positions inN-Data, Bosch,and this matter. Because I cannot ignore the jurisdictional conflicts and doctrinal contradictions that we are inviting with this policy and its inconsistent application, I dissent.

[FR Doc. 2013-00465 Filed 1-10-13; 8:45 am] BILLING CODE 6750-01-P FEDERAL TRADE COMMISSION Revised Jurisdictional Thresholds of the Clayton Act AGENCY:

Federal Trade Commission.