Title: Federal Seed Act Program.

OMB Number: 0581-0026.

Expiration Date of Approval: August 31, 2010.

Type of Request: Extension and revision of currently approved information collection.

Abstract: This information collection and recordkeeping requirements are necessary to conduct the Federal Seed Act (FSA) (7 U.S.C. 1551 et seq.) program with respect to certain testing, labeling, and recordkeeping requirements of agricultural and vegetable seeds in interstate commerce. Regulations under the FSA are contained in 7 CFR Part 201.

The FSA, Title II, is a truth-in-labeling law that regulates agricultural and vegetable planting seed in interstate commerce. Seed subject to the FSA must be labeled with certain quality information and it requires that information to be truthful. The FSA prohibits the interstate shipment of falsely advertised seed and seed containing noxious-weed seeds that are prohibited from sale in the State into which the seed is being shipped.

No unique forms are required for this information collection. The FSA requires seed in interstate commerce to be tested and labeled. Once in a State, seed must comply with the testing and labeling requirements of the State seed law. The same testing and labeling required by the FSA nearly always satisfies the State's testing and labeling requirements. Also the receiving, sales, cleaning, testing, and labeling records required by the FSA, are records that the shipper would normally keep in good business practice.

The information in this collection is the minimum information necessary to effectively carry out the enforcement of the FSA. With the exception of the requirements for entering a new variety into a State seed certification program (set forth separately below), the information collection is entirely recordkeeping rather than reporting.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 2.14 hours per recordkeeper.

Respondents: Interstate shippers and labelers of seed.

Estimated Number of Respondents: 2,870.

Estimated Total Annual Responses: 19,373.

Estimated Number of Responses per Respondent: 6.75.

Estimated Total Annual Burden on Respondents: 41,500 hours.

Estimate of Burden: Public reporting burden for this collection of information (eligibility for certification of new varieties) is estimated to average 2.23 hours per response.

Respondents: Entities seeking to enter new varieties into State seed certification programs.

Estimated Number of Respondents: 70.

Estimated Total Annual Responses: 630.

Estimated Number of Responses per Respondent: 9.

Estimated Total Annual Burden on Respondents: 1,406 hours.

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

NOAA's Marine Debris Program (MDP) serves as a centralized marine debris capability within NOAA in order to coordinate, strengthen, and increase the visibility of marine debris issues and efforts within the agency, its partners, and the public. The mission of the NOAA Marine Debris Program is to investigate and solve the problems that stem from marine debris through research, prevention, and reduction activities, in order to protect and conserve our nation's living marine resources and ensure navigation safety.

Additionally, the MDP supports and works closely with various partners across the U.S. to fulfill the Program's mission. The guidelines implementing the MDP's grant program are set forth below.

Information on the MDP can be found on the World Wide Web at: http://marinedebris.noaa.gov.

Discussion of Comments:

Only one comment was received in response to the solicitation for comment on the NOAA Marine Debris Program Grant Program Guidelines published in the Federal Register on March 20, 2008. This comment referenced a 1951 Act and outlined enforcement actions that should be taken to address pollution from commercial shipping. The comment was not applicable to the Guidelines and therefore NOAA is not providing a response to the comment.

The guidelines implementing the MDP grant program are set forth below.

The Marine Debris Research, Prevention, and Reduction Act (the Act) (33 U.S.C. 1951 et seq.) establishes a marine debris program within the National Oceanic and Atmospheric Administration (NOAA) to reduce and prevent the occurrence and adverse impacts of marine debris on the marine environment, and navigation safety through activities such as:

• Mapping, identification, impact assessment, removal, and prevention;

• Reducing and preventing loss of fishing gear; and

• Outreach.

The Act also directs the Administrator to provide financial assistance in the form of grants to accomplish the Act's purpose of identifying, determining sources of, assessing, reducing, and preventing marine debris and its adverse impacts on the marine environment, living marine resources, and navigation safety.

The Act further directs the Administrator to issue guidelines for the implementation of the grant program, including development of criteria and priorities for grants, in consultation with the Interagency Marine Debris Coordinating Committee; regional fishery management councils established under the Magnuson-Stevens Fishery Conservation and Management Act; state, regional, and local governmental entities with marine debris experience; marine-dependent industries; and nongovernmental organizations involved in marine debris research, prevention, and removal activities.

The grant program's objective is to bring together groups, public and non-profit organizations, industry, academia, commercial organizations, corporations and businesses, youth conservation corps, students, landowners, and local governments, and state and Federal agencies to implement marine debris-related projects to support NOAA's mission, “to understand and predict changes in Earth's environment and conserve and manage coastal and marine resources to meet our Nation's economic, social, and environmental needs.” These diverse entities will be sought at the national, state, and local level to contribute funding, technical assistance, workforce support or other in-kind services to allow citizens to take responsibility for the improvement of important living marine resources, their habitats and other uses of the ocean that are impacted by marine debris.

These guidelines provide information for potential applicants to the NOAA Marine Debris Program's (MDP) grant program. In regard to MDP grants that may be awarded by NOAA through competitive solicitations, the guidelines explain the grant program goals and objectives, and the implementation of the competitive grant program.

In order to accomplish its comprehensive mission, the MDP anticipates using two different approaches in designing its grant program. First, the MDP will solicit recipients who will work directly on individual projects related to relevant marine debris issues. Second, the MDP will solicit diverse entities which will be funded to engage actively in establishing partnership arrangements with other organizations with the purpose of cooperatively implementing marine debris-related projects to benefit NOAA trust resources. The entities selected to establish these partnerships will assume the administrative responsibilities, such as letting contracts and managing progress and financial reports, for making subawards to accomplish individual projects.

In accordance with section 3(c)(4) of the Act, any state, local or tribal government whose activities affect research or regulation of marine debris and any institution of higher education, nonprofit organization, Regional Fishery Management Council, or commercial organization with expertise in a field related to marine debris, is eligible to submit a marine debris proposal under this grant program. Individuals may also apply. Federal agencies are not eligible to apply for funding through any opportunity covered by these guidelines; however, they are encouraged to work in partnership with state agencies, municipalities, and community groups who may apply.

Generally, the MDP grant program is interested in funding projects that address one or more activities specified in the Act, including:

• Mapping, identification, impact assessment, removal and prevention of marine debris;

• Reducing and preventing the loss of fishing gear;

• Outreach and education; and

• Assisting in maintaining an up-to-date Federal marine debris information clearinghouse.

The MDP anticipates that proposed projects, either funded directly through NOAA or through entities selected to leverage funding through partnership arrangements with other organizations, should clearly demonstrate anticipated benefits to:

• Aquatic habitats, including but not limited to, salt marshes, seagrass beds, coral reefs, mangrove forests, or other sensitive aquatic habitats;

• Species, including marine mammals, commercial and non-commercial fishery resources; endangered and threatened marine species, seabirds, other NOAA trust resources, or other living marine resources;

• Navigation Safety; or

• Other aspects of the marine environment.

Research-focused projects should explicitly state the hypothesis or purpose of the research, the methods that will be used, and how the results may be used and analyzed to better understand or decrease the impacts or amount of marine debris in the environment. Research projects are not required to have an outreach component; however, they should include a method for sharing project results with other researchers and relevant parties.

Prevention-focused projects should have a component that is able to measure the success of the activity within a target audience or debris type.

Reduction-focused projects should emphasize reduction and prevention within local, state or regional plans. Removal of debris should result in benefits to the species and habitats listed in this section of these guidelines, and respond to a local, state or regional prioritization method. Projects that make debris less harmful while in the environment are also considered reduction-focused. Examples of this type of project are modifications to fishing gear so that, if lost, there is a mechanism for trapped animals to escape or a way to reduce the gear's fishing efficiency.

Outreach projects should be focused enough to achieve results within a target audience, be able to measure the attitudes and behaviors of the target audience before and after the project, convey the importance of marine debris issues, and have tangible products.

The Federal marine debris information clearinghouse, as of September 2009, has not yet been organized. Its status will be updated and provided in any funding opportunity announcement that lists maintaining the clearinghouse as a priority, to focus project proposals.

The MDP anticipates that funding opportunities will note the priorities for the selection of applications in the competitive announcements. Such priorities may note that applications would be more likely to be successful if they demonstrated a clear need for the proposed action(s), assisted the nation in gaining a better understanding of, or addressing, marine debris, and have clear results within the priorities of the applicable funding opportunity. Monitoring or performance evaluation components to address the long-term success of the project are also encouraged. As is warranted, the MDP may develop other selection priorities for inclusion in the funding opportunities.

The MDP anticipates that non-research projects requesting funds predominantly for administration, salaries, and overhead may be discouraged in light of the fact that the majority of funds should be used for activities that would otherwise not be undertaken. Actual uses of the funds would depend on the type and focus of the project.

Section 3(c)(2) of the Act states Federal funds may not exceed 50 percent of the total cost of a project under this Program. The competitive funding opportunities will set out how the match requirement may be met, such as through volunteer hours, and will vary depending on the entities selected for funding. The Act indicates that a waiver of the match may be allowed if the Administrator determines the project meets the following two requirements:

(1) No reasonable means are available through which applicants can meet the matching requirement, and

(2) the probable benefit of such project outweighs the public interest in the matching requirement.

Any applicant interested in requesting a waiver would have to provide a detailed justification explaining the need for the waiver including attempts to obtain sources of matching funds, how the benefit of the project outweighs the public interest in providing match, and any other extenuating circumstances preventing the availability of match.

In addition, the Act provides, in section 3(c)(3)(A), that if authorized by the Administrator or the Attorney General, the non-Federal share of the cost of a project may include money or the value of any in-kind service performed under an administrative order on consent or judicial consent decree that will remove or prevent marine debris.

The MDP grant program may use new or existing NOAA grant programs as vehicles to fund projects related to the purposes of the Act. The MDP anticipates that competitive funding opportunities will be announced entailing marine debris funding and including funding priorities for that opportunity each year. There may be more than one opportunity each year. Opportunities will be made public through a Notice of Funding Availability (NOFA) published in the Federal Register and posted on www.grants.gov. The availability of funding to be awarded through subgrants from NOAA grant recipients, including applicable selection priorities, will be announced through e-mail, Web sites, and press releases.

The MDP grant program envisions funding projects through cooperative agreements and grants, as appropriate.

A cooperative agreement is a legal instrument reflecting a relationship between NOAA and a recipient whenever (1) the principal purpose of the relationship is to provide financial assistance to the recipient and (2) substantial involvement is anticipated between NOAA and the recipient during performance of the contemplated activity.

A grant is similar to a cooperative agreement, except that in the case of grants, substantial involvement between NOAA and the recipient is not anticipated during the performance of the contemplated activity. Financial assistance is the transfer of money, property, services or anything of value to a recipient in order to accomplish a public purpose of support or stimulation that is authorized by Federal statute.

Each year, the NOAA Marine Debris Division Chief will determine the proportion of Program funds that will be allocated to direct project funding through grants and to organizations that will leverage NOAA dollars through partnership arrangements. The proportion of funding to be allocated to these organizations may depend upon the amount of funds available from partnering organizations to leverage NOAA dollars and the ability of partners to help NOAA fund a broad array of projects over a wide geographic distribution.

NOAA's Notice of Funding Availability (NOFA) and accompanying Federal Funding Opportunity (FFO) announcement will contain funding opportunity descriptions, award information, eligibility information, application and submission information, priority funding areas for the year, application review and selection criteria, award administration information, Administrative and National Environmental Policy Act requirements, agency contacts, and other information for potential applicants. In 2000, NOAA adopted five standard evaluation criteria for all its competitive grant programs, as follows:

• Importance and Applicability of Proposal—This criterion ascertains whether there is intrinsic value in the proposed work and/or relevance to NOAA, Federal, regional, state or local activities.

• Technical/Scientific Merit—This criterion assesses whether the approach is technically sound and/or innovative, if the methods are appropriate, and whether there are clear project goals and objectives.

• Overall Qualifications of Applicants—This criterion ascertains whether the applicant possesses the necessary education, experience, training, facilities, and administrative resources to accomplish the project.

• Project Costs—This criterion evaluates the budget to determine if it is realistic and commensurate with the project needs and time-frame.

• Outreach, Education, and Community Involvement—NOAA assesses whether the project provides a focused and effective education and outreach strategy regarding NOAA's mission.

Information on how these criteria are specifically applied in the context of the NOAA Marine Debris Program will be described each year in the NOFAs and FFOs for NOAA-funded project awards and for awards to organizations that will issue subawards to fund projects related to marine debris issues.

Should other Federal agencies partner with NOAA to award funding, opportunities will be published in www.grants.gov and through such other vehicles as may be appropriate for the particular agency making the solicitation announcement. Examples would be the Federal Register or the particular agencies' Web sites. Application requirements may vary by partner agency and will be specified in the relevant solicitations.

It is the applicant's responsibility to obtain all necessary Federal, state, and local government permits and approvals for the proposed work. Applicants are expected to design their projects so that they minimize the potential for adverse impacts to the environment. NOAA must analyze the potential environmental impacts, as required by the National Environmental Policy Act (NEPA), for applications that seek NOAA funding and which are subject to NOAA control and discretion. Proposals should provide enough detail for NOAA to make a NEPA determination. Successful applications cannot be forwarded to the NOAA Grants Management Division with recommendations for funding until NOAA completes necessary NEPA documentation or determines it does not apply.

Consequently, as part of an applicant's package, and under the description of proposed activities, applicants will be required to provide detailed information on the activities to be conducted, such as site locations, species and habitat(s) to be affected, possible construction activities, and any environmental concerns that may exist (e.g., the use of and/or disposal of hazardous or toxic substances, introduction of non-indigenous species, impacts to endangered and threatened species, impacts to coral reef systems). For partnerships, where project-specific details may not be available at the time an award is made, partners must meet the same environmental compliance requirements on subsequent sub-awards.

In addition to providing specific information that will serve as the basis for any required impact analyses, applicants may also be required to assist NOAA in the drafting of an environmental assessment if NOAA determines an assessment is necessary and that one does not already exist for the activities proposed in the application. Applicants will also be required to cooperate with NOAA in identifying and implementing feasible measures to reduce or avoid any identified adverse environmental impacts of their proposal. The selecting official may decide, at the time of proposal review, to recommend funding a project in phases to enable an applicant to provide information needed for an environmental assessment, feasibility analysis or similar activity if a NEPA determination cannot be made for all activities in a particular application. The selecting official may also impose special award conditions that limit the use of funds for activities that have outstanding environmental compliance requirements. Special award conditions may also be imposed, for example, to ensure that grantees consider and plan for the safety of volunteers, and provide appropriate credit for NOAA and other contributors.

Activities that address marine debris, particularly removal actions, can be dangerous and may require additional safety consideration. The applicant may be requested to submit safety information for activities being considered, to ensure full review and understanding. The selecting official may also impose special award conditions that limit the use of funds for activities that have outstanding safety issues.

The funding opportunities, number of awards, and funding ranges to be made in future years will depend on the amount of funds appropriated to the MDP annually by Congress. Such information will be published in the NOFA and FFO for each funding opportunity.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et 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, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings 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. 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

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].

On May 5, 2009, NMFS received an application from Caltrans for the taking, by Level B harassment, of marine mammals incidental to retrofitting the Antioch Bridge, located 5.4 miles east of the confluence of the Sacramento and San Joaquin Rivers. To access shallow water piers, a temporary support trestle would be installed using a pile driver hammer. Because pile driving has the potential to result in behavioral harassment to marine mammals located in the action area, an authorization under section 101(a)(5)(D) of the MMPA is warranted.

The Antioch Bridge, completed in 1978, was designed based on seismic standards that the Caltrans established in 1971. After the Loma Prieta in 1989, Caltrans implemented the Seismic Retrofit Program. After the Northridge Earthquake of 1994, Caltrans implemented Phase Two of the Program, which required seven state-owned toll bridges, including the Antioch Bridge, to be retrofitted. The Antioch Seismic Retrofit Project would provide a seismic upgrade of the Antioch Bridge; the upgrade would meet the current requirements.

The Antioch Bridge is 9,437-ft long, accommodates one lane of traffic in either direction, and includes narrow accommodation for bicyclists and pedestrians. Proposed retrofit elements to the bridge include installation of steel bracings; replacement of the existing elastometric bearings with isolation bearings; and removal of the existing curtain walls and retrofit of all the columns within the slab span structure. To accomplish this, a temporary trestle would be built to allow access to the piers in shallow water (out to Pier 11). The temporary marine trestle would be constructed from the south shore of the San Joaquin River; out approximately 910-ft into the river along the west side of the existing bridge structure. This is where water depths are less than 10-ft below mean lower-low water (MLLW) and are too shallow to be accessed by barge. The trestle will be 25 ft wide with piles spaced 25-ft apart. It will be constructed using approximately 160 24-in steel hollow shell piles which will be installed with a vibratory hammer. Vibrating a single 24-in pile into place requires, at the most, ten minutes of noise generating vibration. In addition, Caltrans will “proof” or test one pile per day using an impact hammer to ensure the pile can sustain the required load. Proofing the piles would require approximately 20 blows per day, generating sound pressure for about one minute per day. The entire project is expected to take 2.5 years to complete; however, installation of the temporary piles is expected to take approximately 4 months and is planned for August 1- November 1, 2010. At the completion of the project, the trestle and all piles would be removed. All pile driving would be conducted during daylight hours only.

Some components of the project, (e.g., creation of access roads; installation of bracings) would not involve in-water work and therefore are not expected to harass marine mammals. In-air noise from these activities is not a concern in this case as pinnipeds are not known to haul-out near the bridge (see Affected Environment). Therefore, NMFS has preliminary determined that these specified activities do not warrant an authorization and they will not be discussed further.

The Antioch Bridge project area includes Caltrans right-of-way (ROW) and temporary construction easements. This area covers approximately 62 acres (ac), including 7.5 ac on the south shore of the San Joaquin River in Contra Costa County, 21 ac of the San Joaquin River, and 33.5 ac on Sherman Island in Sacramento County. On the south side of the river, vegetation is primarily park landscaping, with weedy ruderal vegetation under the existing bridge. A small fringe wetland is found along the San Joaquin River around the bridge.

The San Joaquin River is relatively shallow on the south side, with depths of less than 10-ft out to Pier 11. The main channel extends between Piers 12 and 20, with deep water passage between Piers 19 and 20, near the northern shore. On the north side of the river, Sherman Island supports irrigated pasture and irrigated crops, as well as an area of ruderal vegetation in fallow fields. Mayberry Slough and an irrigation canal cross the area in the vicinity of Piers 39 and 40, and Pier 32, respectively. The waters around the bridge are not heavily used by marine mammals but do provide some foraging habitat for certain pinniped species.

The project area lies outside the range of most marine mammal species. The Guadalupe fur seal (Arctocephalus townsendi), northern elephant seal (Mirounga angustirostris), northern fur-seal (Callorhinus ursinus), and northern (Stellar) sea lion (Eumetopias jubatus) have distributions that extend northward along the California coast but their ranges do not extend into the bays and estuaries of the Delta. There have been two documented occurrences of humpback whales (Megaptera novaeangliae) traveling up the Sacramento River, but these occurrences do not represent the normal behavior patterns of the species. Occurrences of humpback whales have never been documented and are not anticipated at the bridge location.

The only marine mammal species which may be affected by the project are the California sea lion and Pacific harbor seal. Both species have been known to sporadically venture into estuaries and rivers in search of food, and the California Department of Fish and Game (CDFG) indicates that the ranges of these two species encompasses the region of the Delta in which the project occurs.

The California sea lion is the most abundant marine mammal in California with an estimated population of 50,000 along the entire California coast and islands. The entire US population has been estimated at 238,000 in 2005, and growing at a rate of approximately 6.52 % annually between 1975 and 2005 (NMFS, 2007). The California stock of sea lions is not listed as depleted under the MMPA or threatened or endangered under the MMPA.

California sea lions exhibit seasonal migration patterns organized around their breeding patterns. The sea lions breed in rookeries in the Channel Islands and Mexico from May through August. Females tend to remain close to the rookeries throughout the year, while males migrate north after the breeding season in the late summer, and then migrate back south to the breeding grounds in the spring (CDFG, 1990).

Sea lions feed on fish and cephalopods, including Pacific whiting, rockfish, anchovy, hake, flat-fish, small sharks, squid, and octopus. Sea lions are often solitary feeders; however they also hunt in groups which can vary in size according to the abundance of prey. Within the action area; sea lions are often solitary.

Main breeding rookeries are found in the Channel Islands. Males haul out on Farallon Island and Ano Nuevo Island throughout the year. Sea lions can be found at sea from the surf zone out to near shore and pelagic waters. On land, the sea lions are found resting and breeding in groups of various sizes, and haul out on rocky surfaces and outcroppings and beaches, as well as manmade structures such as jetties and buoys. Sea lions prefer haulout sites and rookeries near abundant food supplies, with easy access to water; although sea lions occasionally travel up rivers and bays in search of food.

No known haulout sites occur in the vicinity of the bridge. During the designated August 1 to November 30 work window for installing the temporary marine trestle, California sea lions will likely be absent during August, as they are still in the breeding season and will be located further south, in the Channel Islands (CDFG 1990). Beginning in September, the likelihood of sea lions foraging in the San Joaquin River Delta increases, as males are beginning to return from the Channel Island rookeries at this time (CDFG 1990).

Harbor seals are the most widely distributed pinniped species, occurring on both sides of the northern Pacific and Atlantic Ocean (NMFS 2005). The Pacific harbor seal ranges from Baja Mexico to the Aleutian Islands, and occurs along the entire length of the California coast. Harbor seal populations in California were estimated at 34,233 in 2005, and have been growing at an estimated rate of 3.5 % from 1982 to 1995 (NMFS 2005). Harbor seals are not listed as depleted under the MMPA or threatened or endangered under the MMPA.

The breeding season lasts from March through June each year, with peak births occurring between April and May. Females give birth to one pup each year, and mate again shortly after weaning. Harbor seals are not territorial on land, but do maintain spacing between individuals in haul outs.

Harbor seals feed on fish, crustaceans and some cephalopods. Foraging occurs in shallow littoral waters, and common prey items include flounder, sole, hake, codfish, sculpin, anchovy and herring. Harbor seals are typically solitary while foraging, although small groups have been observed. Seals spotted within the action area are usually solitary.

Unlike California sea lions, harbor seals are rarely found in pelagic waters and typically stay within the tidal and intertidal zones. On land, harbor seals haul out on rocky outcrops, mudflats, sandbars and sandy beaches with unrestricted access to water and with minimal human presence. Harbor seals are non-migratory, but will make short to-moderate distance journeys for feeding and breeding needs, including venturing into estuaries and rivers (CDFG 2005).

The area of the Delta where the project occurs falls within the limits of the range of harbor seals; however, no known haulout sites have been identified in the vicinity of the bridge. Potential occurrences of harbor seals would be limited to individuals in search of food upstream into the San Joaquin River.

Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water. Sound levels are compared to a reference sound pressure to identify the medium. For air and water, these reference pressures are “re 20 microPa” and “re 1 microPa”, respectively. Sound is generally characterized by several variables, including frequency and sound level. Frequency describes the sound's pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound level describes the sound's loudness and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. For example, 10-dB yields a sound level 10 times more intense than 1 dB, while a 20 dB level equates to 100 times more intense, and a 30 dB level is 1,000 times more intense. However, it should be noted that humans perceive a 10 dB increase in sound level as only a doubling of sound loudness, and a 10 dB decrease in sound level as a halving of sound loudness.

Marine mammals use sound for vital life functions, and introducing sound into their environment could be disrupting to those behaviors. Sound (hearing and vocalization/ echolocation) serves 4 main functions for marine mammals. These functions include (1) providing information about their environment; (2) communication; (3) enabling remote detection of prey; and (4) enabling detection of predators. Noise from pile driving may affect marine mammals at a level which could cause behavioral harassment. The distances to which these sounds are audible depend on source levels, ambient noise levels, and sensitivity of the receptor (Richardson et al. 1995). Mitigation measures (see Mitigation section) and the low source level of vibratory pile driving (the main method used to install piles) are expected to prevent injurious exposure.

Pinnipeds produce a wide range of hearing social signals, most occurring at relatively low frequencies (Southall et al., 2007), suggesting hearing is keenest at these frequencies. Pinnipeds communicate acoustically both on land and in the water suggesting they possess amphibious hearing and have difference hearing capabilities dependant upon the media (air or water). Based on numerous studies, as summarized in Southall et al. (2007), pinnipeds are more sensitive to a broader range of sound frequencies in water than in air. In-water, pinnipeds can hear frequencies from 75 Hz to 75kHz. In-air, the lower limit remains at 75 Hz but the highest audible frequencies are only around 30kHz (Southall, et al., 2007).

Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very loud sounds. Hearing impairment is measured in two forms: temporary threshold shift and permanent threshold shift. Relationships between TTS and PTS thresholds have not been studied in marine mammals, but are assumed to be similar to those in humans and other terrestrial mammals. There is no empirical data for onset of PTS in any marine mammal, and therefore, PTS- onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the threshold is reduced by ≥ 40 dB (i.e., 40 dB of TTS). Due to proposed mitigation measures and source levels, NMFS does not expect that marine mammals will be exposed to levels that could elicit PTS and therefore it will not be discussed further.

TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to (in cases of strong TTS) days. For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. Southall et al. (2007) considers a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient to be recognized as an unequivocal deviation and thus a sufficient definition of TTS-onset. Because it is non-injurious, NMFS considers TTS Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider onset TTS to be the lowest level at which Level B harassment may occur.

Sound exposures that elicit TTS in pinnipeds underwater have been measured in harbor seals, California sea lions, and northern elephant seals from broadband or octaveband (OBN) non-pulse noise ranging from approximately 12 minutes to several hours (Kastak and Schusterman, 1996; Finneran et al., 2003; Kastak et al., 1999; Kastak et al., 2005). Collectively, Kastak et al. (2005) analyzed these data to indicate that in the harbor seal, a TTS of ca. 6 dB occurred with 25 minute exposure to 2.5 kHz OBN with SPL of 152 dB re:1 microPa; the California sea lion showed TTS-onset at 174 dB re: 1 microPa (as summarized in Southall et al., 2007). Underwater TTS experiments involving exposure to pulse noise is limited to a single study. Finneran et al. (2003) found no measurable TTS when two California sea lions were exposed to sounds up to 183 dB re: 1 microPa (peak-to-peak).

The source of underwater noise during construction would be pile driving to construct the temporary work trestle. There are limited data available on the effects of non-pulse noise on pinnipeds in-water; however, field and captive studies to date collectively suggest that pinnipeds do not strongly react to exposures between 90-140 dB re: 1 microPa. Jacobs and Terhune (2002) observed wild harbor seal reactions to acoustic harassment devices (ADH) around nine sites. Seals came within 44 m of the active ADH and failed to demonstrate any behavioral response when received SPLs were estimated at 120-130 dB re: 1 microPa. In a captive study, a group of seals were collectively subjected to non-pulse sounds (e.g., vibratory pile driving) at 8-16 kHz (Kastelein, 2006). Exposures between 80-107 dB re: 1 microPa did not induce strong behavioral responses; however, a single observation at 100-110 dB re: 1 microPa indicated an avoidance response at this level. The group returned to baseline conditions following exposure (i.e., no long term impact). Southall et al. (2007) notes contextual differences between these two studies noting that the captive animals were not reinforced with food for remaining in the noise fields, whereas free-ranging subjects may have been more tolerant of exposures because of motivation to return to a safe location or approach enclosures holding prey items. Southall et al. (2007) reviewed relevant data from studies involving pinnipeds exposed to pulse noise (e.g., impact pile driving) and concluded that exposures to 150 to 180 dB re: 1 microPa generally have limited potential to induce avoidance behavior.

Seals and sea lions exposed to threshold level sounds (120 dB for non-pulse; 160 dB for pulse) may elicit temporary avoidance behavior around the bridge, which may affect movement of seals under the bridge or temporarily inhibit them from foraging near the bridge. However, limiting pile driving to one to hours per day would allow for minimal disruption of harbor seal foraging or use of dispersal habitat. Very few sea lions use the South Bay for foraging and no known sea lion haul-outs exist in the South Bay; therefore, impacts are expected to be equally minimal than those of harbor seals.

Based on these studies, NMFS has preliminarily determined that seals and sea lions exposed to threshold level sounds (120 dB for non-pulse; 160 dB for pulse) may elicit temporary pinniped avoidance behavior. The most likely impact to pinnipeds from the pile installation would be temporary disruption of feeding patterns as individual sea lions or harbor seals pass through the area in pursuit of food. However, limiting pile driving to one to two hours per day would allow for minimal disruption of foraging or use of dispersal habitat. No haulouts exist and no pupping or breeding is known to occur on land near the bridge; therefore, no impacts to reproduction or interruption of mom/pup bonding or nursing are anticipated. Temporary hearing loss is possible for those pinnipeds that enter into zone of Level B harassment, but permanent hearing loss or other harm is not anticipated due to monitoring and mitigation efforts, as described below) and low source level of pile driving.

NMFS typically uses threshold sound levels to estimate takes and establish appropriate mitigation. Current NMFS practice regarding exposure of marine mammals to anthropogenic noise is that in order to avoid injury of marine mammals (e.g., PTS), cetaceans and pinnipeds should not be exposed to impulsive sounds of 180 and 190 dB rms or above, respectively. This level is considered precautionary as it is likely that more intense sounds would be required before injury would actually occur (Southall et al., 2007). As such, Caltrans has proposed safety zones based on hydroacoustical modeling for the pile sizes and type of hammers used for the Dumbarton Bridge project and water depth. The model simulates spherical spreading and uses a transmission constant of 15. Potential for behavioral harassment (Level B) is considered to have occurred when marine mammals are exposed to sounds at or above 160dB rms for impulse sounds (e.g., impact pile driving) and 120dB rms for non-pulse noise (e.g., vibratory pile driving), but below the aforementioned thresholds. These levels are considered precautionary. Estimated distances to NMFS' current harassment threshold levels from pile driving during the proposed action are outlined in Table 1 below.

For the impact portion of the trestle pile installation, a source level of 194 dB RMS at 35-ft was used to calculate NMFS level harassment distances. Based on this source level, models estimated that pile installation for the Project could generate sound levels above 190 dB that would extend out about 55-ft from the pile. The calculated distance for sounds above 160 dB (Level B harassment) is approximately 3,300-ft. For the vibratory portion of the trestle pile installation, a source level of 166 dB RMS at 35-ft is assumed; therefore, sound levels above 190 dB would not be reached during the installation of piles by vibratory hammer. The calculated distance for sounds above 120 dB (Level B harassment threshold for non-impulse sounds) would be around 10.2 miles.

Current NMFS practice regarding in-air exposure of pinnipeds to noise generated from human activity is that the onset of Level B harassment for harbor seals and all other pinnipeds is 90 dBrms and 100 dB rms re: 20 micoPa, respectively. In-air noise calculations from pile driving for the Dumbarton Bridge project, which uses the same size and type of piles and hammers, predict that noise levels will be reduced to approximately 83 dB rms re: 20 microPa at 800m. Harbor seals or California sea lions are not known to haul-out anywhere near the Antioch Bridge; therefore, in-air noise is not considered to contribute to harassment for this project.

It is difficult to estimate the number of California sea lions and Pacific harbor seals that could be affected by the installation of piles for the temporary marine trestle, as pinnipeds only sporadically venture into the project area in pursuit of food. Due to the project location lying at the extreme margins of these species' ranges, the number of individual pinnipeds expected to be encountered is very low. Through consultation with NMFS' Southeast Regional Office, Caltrans requests the take of 10 California seal lions. These individuals would most likely be adult males, as the females and pups tend to remain close to the breeding rookeries. Similarly, Caltrans requests, and NMFS' proposes, authorization to take 10 individual harbor seals incidental to pile driving activities; also likely males in pursuit of food.

Caltrans has proposed mitigation both in their application and supplemental communication to reduce impact to environmental resources. Measures set in place to protect birds and fish (e.g., using the vibratory hammer at all times except for load bearing tests) also protect marine mammals. The following proposed mitigation measures are designed to eliminate potential for injury and reduce Level B harassment of marine mammals.

Vibratory pile driving does not elicit source levels at or above NMFS' harassment threshold for Level A harassment, therefore, no required shut down zones would be established for vibratory pile driving. The isopleth for the Level A harassment threshold (190 dB) is modeled to be within 55 ft (16.8 m) of the impact pile hammer (see Table 1); however, Caltrans has proposed to delay impact pile driving should a marine mammal come within or approach 100 ft (30 m) of the pile being driven; further reducing the risk of Level A harassment.

As a result of Section 7 consultation discussions with NMFS, Caltrans has agreed to drive all temporary piles with a vibratory hammer, to reduce impacts to listed fish, with the exception of one pile per day being “proofed” with an impact hammer. Proofing requires approximately 20-40 blows per pile which equates to approximately 15-20 seconds of impact hammering per day. This action would also serve to reduce impacts to marine mammals.

A “soft start” technique would be used at the beginning of each pile installation to allow any marine mammal that may be in the immediate area to leave before impact piling reaches full energy. The soft start requires contractors to initiate noise from vibratory hammers for 15 seconds at reduced energy followed by 1-minute waiting period. The procedure would be repeated two additional times. Due to the short duration of impact pile driving (20 seconds), the traditional ramp-up requirement for impact pile driving does not apply as it would actually increase the duration of noise emitted into the environment and monitoring should effectively detect marine mammals within or near the proposed impact pile driving shut down of 100 ft (30 m). If any marine mammal is sighted within or approaching this shut down zone prior to pile-driving, Caltrans would delay pile-driving until the animal has moved outside and on a path away from such zone or after 15 minutes have elapsed since the last sighting of the marine mammal.

Safety zone monitoring would be conducted during all active pile driving. Monitoring of the 100 ft (30 m) safety zone would be conducted by qualified, NMFS approved marine mammal observers (MMOs). Impact pile driving would not begin until the 100 ft safety zone is clear of marine mammals and would be stopped in the event that marine mammals enter the safety zone. For all pile driving, MMOs would begin monitoring at least 30 minutes prior to the commencement of pile driving and could conduct monitoring from small boats, as observation from a higher vantage point may not be practical. MMOs would remain 50 yards from swimming pinnipeds in accordance with NMFS marine mammal viewing guidelines (http://swr.nmfs.noaa.gov/psd/rookeryhaulouts/CASEALVIEWBROCHURE.pdf). This would prevent additional harassment to pinnipeds from the vessel. If a land based monitoring point can be found, MMOs would be stationed here. Observations would be made with binoculars during daylight hours. Data on all observed marine mammals would be recorded and include information such as species, numbers, time of observation, location, and behavior.

Monitors would be present to conduct hydro-acoustic monitoring, in order to empirically establish the 190 dB RMS (impulse) safety zone and behavioral harassment zones. Field measurements of sound pressure levels would be recorded and analyzed. A more detailed marine mammal monitoring plan and hydro-acoustic monitoring plan would be made by the monitoring contractor prior to the start of the Antioch Bridge seismic retrofit.

NMFS would be notified 2 weeks prior to the initiation of proposed work. Weekly monitoring reports would be sent to NMFS and include information such as species, numbers, time of observation, location, and behavior. Additionally, the report would include an assessment of the number of California sea lions and harbor seals that may have been harassed as a result of pile driving activity, based on direct observation of sea lions and harbor seals observed passing through the area. Should the acoustic monitoring reveal noise level isopleths different than those described here, a modification to the safety zone reflecting those data would occur.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that pile driving associated with the Anitoch Bridge Seismic Retrofit Project would result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking would have a negligible impact on the affected species or stocks. No subsistence hunting of marine mammals occurs in the region; therefore, no impact on the availability of a species or stock for subsistence use would occur.

On January 26, 2009, NMFS received a request from Caltrans' to initiate consultation under section 7 of the ESA on its proposed Antioch Bridge Seismic Retrofit Project. NMFS concluded consultation on this action on July 13, 2009 and issued an incidental take statement authorizing the take of listed steelhead and green sturgeon. No ESA-listed marine mammal species occur within the action area; therefore, none would be affected.

NOAA Administrative Order Series 216-6, May 20, 1999 (NAO), identifies issuance of IHAs as a type of Federal action that may be categorically excluded from preparation of an environmental assessment or environmental impact statement. In determining whether a categorical exclusion (CE) is appropriate for a given IHA, NMFS must consider: (1) factors listed in Section 5.05b of the NAO regarding prior analysis for the “same” action; (2) context and intensity of impacts, as defined in 40 CFR 1508.27; and (3) factors listed in Section 5.05c of the NAO regarding exceptions to CEs. NMFS has prepared, supplemented, or adopted numerous EAs leading to Findings of No Significant Impact (FONSIs) for pile driving activities similar to the proposed activity, including ones for Caltrans' projects which involved driving larger piles in the northern section of the Bay where pinniped and cetacean species are more abundant. Based on these previous NEPA analyses and the analysis contained within this notice, NMFS has determined that issuance of a one-year IHA to Caltrans for the taking, by Level B harassment only, incidental to the Antioch Bridge Seismic Retrofit project does not have the potential to result in any significant changes to the human environment. Therefore, the issuance of an IHA to Caltrans for the specified activity falls under the category of those actions which can be categorically excluded from the need to prepare an Environmental Assessment or Environmental Impact Statement.

Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.

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.

Type of Review: New.

Title: IEPS Fulbright-Hays Group Projects Abroad Customer Surveys.

Frequency: On occasion.

Affected Public: Individuals or households.

Reporting and Recordkeeping Hour Burden:

Abstract: The purpose of this evaluation is to assess the impact of the Group Projects Abroad (GPA) program in enhancing the foreign language capacity of the United States. Three surveys will be conducted: a survey of GPA Project Directors; a survey of 2002-2008 GPA alumni; and a survey of 2009 alumni. Results from the three surveys will inform the writing of a final report determining the impact of the GPA program.

Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov, by selecting the “Browse Pending Collections” link and by clicking on link number 4182. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to ICDocketMgr@ed.gov or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be electronically mailed to ICDocketMgr@ed.gov 202-401-0526. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

This is a summary of the Commission's Declaratory Ruling (Ruling) in WT Docket No. 08-165 released November 18, 2009. The complete text of the Ruling is available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The Ruling may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI please provide the appropriate FCC document number, FCC 09-99. The Ruling is also available on the Internet at the Commission's website through its Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.

Paperwork Reduction Act of 1995 Analysis: Document FCC 09-99 does not contain new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 47 U.S.C. 3506(c)(4).

1. On July 11, 2008, CTIA (Petitioner) filed its Petition requesting that the Commission issue a Declaratory Ruling clarifying provisions in sections 253 and 332(c)(7) of the Communications Act regarding the timeframes in which zoning authorities must act on siting requests for wireless towers or antenna sites, their power to restrict competitive entry by multiple providers in a given area, and their ability to impose certain procedural requirements on wireless service providers. In the Ruling, the Commission grants the Petition in part and denies it in part to ensure that both localities and service providers may have an opportunity to make their case in court, as contemplated by section 332(c)(7) of the Act.

2. In the Ruling, the Commission finds it has the authority to interpret section 332(c)(7), and it addresses the three issues raised in the Petition. On the first issue, the Commission concludes that it should define what constitutes a presumptively “reasonable period of time” beyond which inaction on a personal wireless service facility siting application will be deemed a “failure to act.” The Commission then determines that in the event a State or local government fails to act within the appropriate time period, the applicant is entitled to bring an action in court under section 332(c)(7)(B)(v). At that point, the State or local government will have the opportunity to present to the court arguments to show that additional time would be reasonable, given the nature and scope of the siting application at issue. The Commission next concludes that the record supports setting the time limits at 90 days for State and local governments to process collocation applications, and 150 days for them to process applications other than collocations. On the second issue raised by the Petition, the Commission finds that it is a violation of section 332(c)(7)(B)(i)(II) for a State or local government to deny a personal wireless service facility siting application solely because that service is available from another provider. On the third issue, because the Petitioner has not presented any evidence of a specific controversy, the Commission denies the request that it find that a State or local regulation that explicitly or effectively requires a variance or waiver for every wireless facility siting violates section 253(a). Finally, the Commission addresses other issues raised in the record, including dismissal of a Cross-Petition filed by the EMR Policy Institute (EMRPI) that, inter alia, seeks a declaratory ruling relating to the Commission's regulations regarding exposure to radio frequency (RF) emissions.

3. Time for Acting on Facility Siting Applications. Section 332(c)(7)(B)(ii) of the Communications Act states that State or local governments must act on requests for personal wireless service facility sitings “within a reasonable period of time.” Section 332(c)(7)(B)(v) further provides that “[a]ny person adversely affected by any final action or failure to act” by a State or local government on a personal wireless service facility siting application “may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.”

4. The Commission finds that the evidence in the record demonstrates that personal wireless service providers have often faced lengthy and unreasonable delays in the consideration of their facility siting applications, and that the persistence of such delays is impeding the deployment of advanced and emergency services. To provide guidance, remove uncertainty and encourage the expeditious deployment of wireless broadband services, the Commission therefore determines that it is in the public interest to define the time period after which an aggrieved party can seek judicial redress for a State or local government's inaction on a personal wireless service facility siting application. Specifically, the Commission finds that a “reasonable period of time” is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or local governments do not act upon applications within those timeframes, then a “failure to act” has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in section 332(c)(7)(B)(v). The State or local government, however, will have the opportunity to rebut the presumption of reasonableness.

5. The Commission finds that the record shows that unreasonable delays are occurring in a significant number of cases. For example, the Commission references data that the Petitioner compiled from its members showing certain personal wireless service facility siting applications had been pending final action for more than one year, and some more than 3 years. In addition, the Commission references several wireless providers who supplemented the record with their individual experiences in the personal wireless service facility siting application process. The Commission states that the record evidence demonstrates that unreasonable delays in the personal wireless service facility siting applications process have obstructed the provision of wireless services. Many wireless providers have faced lengthy and costly processing. The Commission disagrees with State and local government commenters that argue that the Petition fails to provide any credible or probative evidence that any local government is engaged in delay with respect to processing personal wireless service facility siting applications, and that there is insufficient evidence on the record as a whole to justify Commission action. To the contrary, given the extensive statistical evidence provided by the Petitioner and supporting commenters, and the absence of more than isolated anecdotes in rebuttal, the Commission finds that the record amply establishes the occurrence of significant instances of delay.

6. The Commission states that delays in the processing of personal wireless service facility siting applications are particularly problematic as consumers await the deployment of advanced wireless communications services, including broadband services, in all geographic areas in a timely fashion. Wireless providers currently are in the process of deploying broadband networks which will enable them to compete with the services offered by wireline companies. State and local practices that unreasonably delay the siting of personal wireless service facilities threaten to undermine achievement of Commission goals and impede the promotion of advanced services and competition deemed critical by Congress. In addition, the Commission states that deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation.

7. Given the evidence of unreasonable delays and the public interest in avoiding such delays, the Commission concludes that it should define the statutory terms “reasonable period of time” and “failure to act” in order to clarify when an adversely affected service provider may take a dilatory State or local government to court. Specifically, the Commission finds that when a State or local government does not act within a “reasonable period of time” under section 332(c)(7)(B)(i)(II), a “failure to act” occurs within section 332(c)(7)(B)(v). And because an “action or failure to act” is the statutory trigger for seeking judicial relief, the Commission's clarification of these terms will give personal wireless service providers certainty as to when they may seek redress for inaction on an application. The Commission expects that such certainty will enable personal wireless service providers more vigorously to enforce the statutory mandate against unreasonable delay that impedes the deployment of services that benefit the public. At the same time, the Commission's action will provide guidance to State and local governments as to what constitutes a reasonable timeframe in which they are expected to process applications, but recognizes that certain cases may legitimately require more processing time.

8. By defining the period after which personal wireless service providers have a right to seek judicial relief, the Commission both ensures timely State and local government action and preserves incentives for providers to work cooperatively with them to address community needs. Wireless providers will have the incentive to resolve legitimate issues raised by State or local governments within the timeframes defined as reasonable, or they will incur the costs of litigation and may face additional delay if the court determines that additional time was, in fact, reasonable under the circumstances. Similarly, State and local governments will have a strong incentive to resolve each application within the timeframe defined as reasonable, or they will risk issuance of an injunction granting the application. In addition, specific timeframes for State and local government deliberations will allow wireless providers to better plan and allocate resources. The Commission states that this is especially important as providers plan to deploy their new broadband networks.

9. The Commission rejects the Petition's proposals that the Commission go farther and either deem an application granted when a State or local government has failed to act within a defined timeframe or adopt a presumption that the court should issue an injunction granting the application. Section 332(c)(7)(B)(v) states that when a failure to act has occurred, aggrieved parties should file with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.” The provision indicates Congressional intent that courts should have the responsibility to fashion appropriate case-specific remedies. As the Petitioner notes, many courts have issued injunctions granting applications upon finding a violation of section 332(c)(7)(B). However, the case law does not establish that an injunction granting the application is always or presumptively appropriate when a “failure to act” occurs. To the contrary, in those cases where courts have issued such injunctions upon finding a failure to act within a reasonable time, they have done so only after examining all the facts in the case. While the Commission agrees that injunctions granting applications may be appropriate in many cases, the proposals in personal wireless service facility siting applications and the surrounding circumstances can vary greatly. It is therefore important for courts to consider the specific facts of individual applications and adopt remedies based on those facts.

10. The Commission also disagrees with commenters that argue that the statutory scheme precludes the Commission from interpreting the terms “reasonable period of time” and “failure to act” by reference to specific timeframes. Given the opportunities that the Commission has built into the process for ensuring individualized consideration of the nature and scope of each siting request, the Commission finds their arguments unavailing. Congress did not define either “reasonable period of time” or “failure to act” in the Communications Act. The term “reasonable” is ambiguous and courts owe substantial deference to the interpretation that the Commission accords to ambiguous terms. The Commission found in the local cable franchising context that the term “unreasonably refuse to award” a local franchise authorization in section 621(a)(1) of the Communications Act is ambiguous and subject to the Commission's interpretation. As in the local franchising context, it is not clear from the Communications Act what is a reasonable period of time to act on an application or when a failure to act occurs. By defining timeframes, the Commission states it will lend clarity to these provisions, giving wireless providers and State and local zoning authorities greater certainty in knowing what period of time is “reasonable,” and ensuring that the point at which a State or local authority “fails to act” is not left so ambiguous that it risks depriving a wireless siting applicant of its right to redress.

11. The Commission's construction of the statutory terms “reasonable period of time” and “failure to act” takes into account, on several levels, the section 332(c)(7)(B)(ii) requirement that the “nature and scope” of the request be considered and the legislative history's indication that Congress intended the decisional timeframe to be the “usual period” under the circumstances for resolving zoning matters. First, the timeframes the Commission defines are based on actual practice as shown in the record. Most statutes and government processes discussed in the record already conform to the timeframes the Commission defines in the Ruling. As such, the timeframes do not require State and local governments to give preferential treatment to personal wireless service providers over other types of land use applications. Second, the Commission considers the nature and scope of the request by defining a shorter timeframe for collocation applications, consistent with record evidence that collocation applications generally are considered at a faster pace than other tower applications. Third, under the regime that the Commission adopts, the State or local authority will have the opportunity, in any given case that comes before a court, to rebut the presumption that the established timeframes are reasonable. Finally, the Commission has provided for further adjustments to the presumptive deadlines in order to ensure that the timeframes accommodate certain contingencies that may arise in individual cases, including where the applicant and the State or local authority agree to extend the time, where the application has already been pending for longer than the presumptive timeframe as of the date of the Ruling, and where the application review process has been delayed by the applicant's failure to submit a complete application or to file necessary additional information in a timely manner. For all these reasons, the Commission concludes that the Commission's clarification of the broad terms “reasonable period of time” and “failure to act” is consistent with the statutory scheme.

12. The Petition proposes a 45-day timeframe for collocation applications and a 75-day timeframe for all other applications. While the Commission recognizes that many applications can and perhaps should be processed within the timeframes proposed by the Petitioner, the Commission is concerned that these timeframes may be insufficiently flexible for general applicability. In particular, some applications may reasonably require additional time to explore collaborative solutions among the governments, wireless providers, and affected communities. Also, State and local governments may sometimes need additional time to prepare a written explanation of their decisions as required by section 332(c)(7)(B)(iii), and the timeframes as proposed may not accommodate reasonable, generally applicable procedural requirements in some communities. Although the reviewing court will have the opportunity to consider such unique circumstances in individual cases, the Commission states that it is important for purposes of certainty and orderly processing that the timeframes for determining when suit may be brought in fact accommodate reasonable processes in most instances.

13. Based on the Commission's review of the record as a whole, it finds 90 days to be a generally reasonable timeframe for processing collocation applications and 150 days to be a generally reasonable timeframe for processing applications other than collocations. Thus, a lack of a decision within these timeframes presumptively constitutes a failure to act under section 332(c)(7)(B)(v). The Commission finds that collocation applications can reasonably be processed within 90 days. Collocation applications are easier to process than other types of applications as they do not implicate the effects upon the community that may result from new construction. In particular, the addition of an antenna to an existing tower or other structure is unlikely to have a significant visual impact on the community. Therefore, many jurisdictions do not require public notice or hearings for collocations. In addition, several State statutes already require application processing for collocations within 90 days. For purposes of this standard, an application is a request for collocation if it does not involve a “substantial increase in the size of a tower” as defined in the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, 47 CFR part 1, Appendix B. Such a limitation will help to ensure that State and local governments will have a reasonable period of time to review those applications that may require more extensive consideration.

14. The Commission further finds that the record shows that a 150-day processing period for applications other than collocations is a reasonable standard that is consistent with most statutes and local processes. Based on the record, the Commission does not agree that the its imposition of the 90-day and 150-day timeframes will disrupt many of the processes State and local governments already have in place for personal wireless service facility siting applications.

15. Section 332(c)(7)(B)(v) provides that an action for judicial relief must be brought “within 30 days” after a State or local government action or failure to act. Thus, if a failure to act occurs 90 days (for a collocation) or 150 days (in other cases) after an application is filed, any court action must be brought by day 120 or 180 on penalty of losing the ability to sue. The Commission concludes that a rigid application of the cutoff to cases where the parties are working cooperatively toward a consensual resolution would be contrary to both the public interest and Congressional intent. Accordingly, the Commission clarifies that a “reasonable period of time” may be extended beyond 90 or 150 days by mutual consent of the personal wireless service provider and the State or local government, and that in such instances, the commencement of the 30-day period for filing suit will be tolled.

16. To the extent existing State statutes or local ordinances set different review periods than the Commission does in the Ruling, the Commission clarifies that its interpretation of section 332(c)(7) is independent of the operation of these statutes or ordinances. Thus, where the review period in a State statute or local ordinance is shorter than the 90-day or 150-day period, the applicant may pursue any remedies granted under the State or local regulation when the applicable State or local review period has lapsed. However, the applicant must wait until the 90-day or 150-day review period has expired to bring suit for a “failure to act” under section 332(c)(7)(B)(v). Conversely, if the review period in the State statute or local ordinance is longer than the 90-day or 150-day review period, the applicant may bring suit under section 332(c)(7)(B)(v) after 90 days or 150 days, subject to the 30-day limitation period on filing, and may consider pursuing any remedies granted under the State or local regulation when that applicable time limit has expired. Of course, the option is also available in these cases to toll the period under section 332(c)(7) by mutual consent.

17. The Commission further concludes that given the ambiguity that has prevailed as to when a failure to act occurs, it is reasonable to give State and local governments an additional period to review currently pending applications before an applicant may file suit. Accordingly, as a general rule, for currently pending applications the Commission deems that a “failure to act” will occur 90 days (for collocations) or 150 days (for other applications) after the release of the Ruling. The Commission recognizes, however, that some applications have been pending for a very long period, and that delaying resolution for an additional 90 or 150 days may impose an undue burden on the applicant. Therefore, a party whose application has been pending for the applicable timeframe that the Commission establishes or longer as of the release date of the Ruling may, after providing notice to the relevant State or local government, file suit under section 332(c)(7)(B)(v) if the State or local government fails to act within 60 days from the date of such notice. The notice provided to the State or local government shall include a copy of the Ruling. The Commission states that this option does not apply to applications that have currently been pending for less than 90 or 150 days, and in these instances the State or local government will have 90 or 150 days from the release of the Ruling before it will be considered to have failed to act. The Commission finds that such a transitional regime best balances the interests of applicants in finality with the needs of State and local governments for adequate time to implement the Commission's interpretation of section 332(c)(7).

18. Finally, the Commission states that these timeframes should take into account whether applications are complete. The Commission finds that when applications are incomplete as filed, the timeframes do not include the time that applicants take to respond to State and local governments' requests for additional information. The Commission also finds that reviewing authorities should be bound to notify applicants within a reasonable period of time that their applications are incomplete. It is important that State and local governments obtain complete applications in a timely manner, and such a finding will provide the incentive for wireless providers to file complete applications in a timely fashion. The Commission finds, based on the record, that a review period of 30 days gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that applications should be denied as incomplete.

19. Accordingly, the Commission concludes that the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete. The Commission finds that the record shows that the total amount of time, including the review period for application completeness, is generally consistent with those States that specifically include such a review period.

20. Prohibition of Service by a Single Provider. The Petitioner asks the Commission to conclude that State or local regulation that effectively prohibits one carrier from providing service because service is available from one or more other carriers violates section 332(c)(7)(B)(i)(II) of the Act. The Commission concludes that a State or local government that denies an application for personal wireless service facilities siting solely because one or more carriers serve a given geographic market has engaged in unlawful regulation that “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services,” within the meaning of section 332(c)(7)(B)(i)(II).

21. Section 332(c)(7)(B)(i)(II) provides, as a limitation on the statute's preservation of local zoning authority, that a State or local government regulation of personal wireless facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” The Commission notes that courts of appeals disagree on whether a State or local policy that denies personal wireless service facility siting applications solely because of the presence of another carrier should be treated as a siting regulation that prohibits or has the effect of prohibiting such services. Thus, a controversy exists that is appropriately resolved by declaratory ruling.

22. The Commission agrees with the Petitioner that the fact that another carrier or carriers provide service to an area is an inadequate defense under a claim that a prohibition of service exists, and the Commission concludes that any other interpretation of section 332(c)(7)(B)(i)(II) would be inconsistent with the Telecommunications Act's pro-competitive purpose. While the Commission acknowledges that the provision could be interpreted in the manner endorsed by several courts—as a safeguard against a complete ban on all personal wireless service within the State or local jurisdiction, which would have no further effect if a single provider is permitted to provide its service within the jurisdiction—the Commission concludes that under the better reading of the statute, the limitation of State/local authority applies not just to the first carrier to enter into the market, but also to all subsequent entrants.

23. The Commission reaches such a conclusion for several reasons. First, the Commission's interpretation is consistent with the statutory language referring to the prohibition of “the provision of personal wireless services” rather than the singular term “service.” Second, an interpretation that would regard the entry of one carrier into the locality as mooting a subsequent examination of whether the locality has improperly blocked personal wireless services ignores the possibility that the first carrier may not provide service to the entire locality, and a zoning approach that subsequently prohibits or effectively prohibits additional carriers therefore may leave segments of the population unserved or underserved. Third, the Commission finds unavailing the concern expressed by the Fourth Circuit (and some other courts) that giving each carrier an individualized right under section 332(c)(7)(B)(i)(II) to contest an adverse zoning decision as an unlawful prohibition of its service “would effectively nullify local authority by mandating approval of all (or nearly all) applications.” Rather, the Commission construes the statute to bar State and local authorities from prohibiting the provision of services of individual carriers solely on the basis of the presence of another carrier in the jurisdiction; State and local authority to base zoning regulation on other grounds is left intact by the Ruling. Finally, the Commission's construction of the provision achieves a balance that is most consistent with the relevant goals of the Communications Act to improve service quality and lower prices for consumers.

24. The Commission's determination also serves the Act's goal of preserving the State and local authorities' ability to reasonably regulate the location of facilities in a manner that operates in harmony with federal policies that promote competition among wireless providers. Nothing the Commission does in the Ruling interferes with these authorities' consideration of and action on the issues that traditionally inform local zoning regulation. Thus, where a bona fide local zoning concern, rather than the mere presence of other carriers, drives a zoning decision, it should be unaffected by the Commission's Ruling. The Commission observes that a decision to deny a personal wireless service facility siting application that is based on the availability of adequate collocation opportunities is not one based solely on the presence of other carriers, and so is unaffected by the Commission's interpretation of the statute in the Ruling.

25. The Commission disagrees with the assertion that granting the Petition could have a negative impact on airports by increasing the number of potential obstructions to air navigation. As the Federal Aviation Administration notes, the Commission's action on the Petition does not alter or amend the Federal Aviation Administration's regulatory requirements and process. The Commission also rejects the assertion that the declaration the Petitioner seeks would violate section 332(c)(7)(A)'s provision that the authority of a State or local government over decisions regarding the placement, construction, and modification of personal wireless service facilities is limited only by the limitations imposed in subparagraph (B). The Commission notes that the denial of a single application may sometimes establish a violation of section 332(c)(7)(B)(ii) if it demonstrates a policy that has the effect of prohibiting the provision of personal wireless services as interpreted herein.

26. Ordinances Requiring Variances. The Petitioner requests that the Commission preempt, under section 253(a) of the Act, local ordinances and State laws that effectively require a wireless service provider to obtain a variance, regardless of the type and location of the proposal, before siting facilities. Because the Petitioner does not seek actual preemption of any ordinance by its Petition, nor does it present the Commission with sufficient information or evidence of a specific controversy on which to base such action or ruling, the Commission declines to issue a declaratory ruling that zoning ordinances requiring variances for all wireless siting requests are unlawful and will be struck down if challenged in the context of a section 253 preemption action.

27. Other Issues. Numerous parties argue that the Petitioner failed to follow the Commission's service requirements with respect to preemption petitions. 47 CFR 1.1206(a), Note 1, of the Commission's rules requires that a party filing either a petition for declaratory ruling seeking preemption of State or local regulatory authority, or a petition for relief under section 332(c)(7)(B)(v), must serve the original petition on any State or local government whose actions are cited as a basis for requesting preemption. By its terms, the service requirement does not apply to a petition that cites examples of the practices of unidentified jurisdictions to demonstrate the need for a declaratory ruling interpreting provisions of the Communications Act. These parties' principal argument is that the Commission should require the Petitioner to identify the jurisdictions that it references anonymously, which, they assert, would then trigger the service requirement. However, nothing in the rules requires that these jurisdictions be identified.

28. Several commenters argue that the Commission should deny the Petition in order to protect local citizens against the health hazards that these commenters attribute to RF emissions. To the extent commenters argue that State and local governments require flexibility to deny personal wireless service facility siting applications or delay action on such applications based on the perceived health effects of RF emissions, such authority is denied by statute under section 332(c)(7)(B)(iv). The Commission concludes that such arguments are outside the scope of the proceeding.

29. In its Cross-Petition, EMRPI contends that in light of additional data that has been compiled since 1996, the RF safety regulations that the Commission adopted at that time are no longer adequate. The Commission states that EMPRI's request to revisit the regulations is also outside the scope of the current proceeding, and the Commission dismisses EMRPI's Cross-Petition.

30. For the reasons discussed in the Ruling, the Commission grants in part and denies in part CTIA's Petition for a Declaratory Ruling interpreting provisions of section 332(c)(7) of the Communications Act. By clarifying the statute, the Commission recognizes Congress' dual interests in promoting the rapid and ubiquitous deployment of advanced, innovative, and competitive services, and in preserving the substantial area of authority that Congress reserved to State and local governments to ensure that personal wireless service facility siting occurs in a manner consistent with each community's values.

31. It is ordered that, pursuant to sections 4(i), 4(j), 201(b), 253(a), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), (j), 201(b), 253(a), 303(r), 332(c)(7), and § 1.2 of the Commission's rules, 47 CFR 1.2, the Petition for Declaratory Ruling filed by CTIA—The Wireless Association is granted to the extent specified in the Ruling and otherwise is denied.

32. It is further ordered that, pursuant to sections 4(i), 4(j), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), (j), 332(c)(7), and § 1.2 of the Commission's rules, 47 CFR 1.2, the Cross-Petition filed by the EMR Policy Institute is dismissed.

On June 22, 2009, the President signed the Tobacco Control Act (Public Law 111-31) into law. The Tobacco Control Act amended the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301 et seq.) by adding a new chapter granting FDA important new authority to regulate the manufacture, marketing, and distribution of tobacco products to protect the public health generally and to reduce tobacco use by minors.

Section 904(a)(4) of the act requires each tobacco product manufacturer or importer, or agent thereof, to submit all documents developed after June 22, 2009, “that relate to health, toxicological, behavioral, or physiologic effects of current or future tobacco products, their constituents (including smoke constituents), ingredients, components, and additives.” Information required under section 904(a)(4) of the act must be submitted to FDA beginning December 22, 2009. FDA recognizes the challenges associated with the collection, review, organization, and production of documents. We also recognize that additional time may be necessary for the production of documents in a digital format, which FDA strongly encourages in order to improve the management and readability of submitted documents. Therefore, FDA does not intend to enforce the December 22, 2009, initial document submission deadline, provided that manufacturers and importers submit by April 30, 2010, all documents described in section 904(a)(4) of the act developed between June 23, 2009, and March 31, 2010. FDA is in the process of developing a draft guidance document that will explain the requirements of and recommendations for compliance with section 904(a)(4) of the act. We anticipate that the draft guidance document will be issued shortly.

FDA is issuing this guidance document as a level 1 guidance consistent with FDA's good guidance practices regulation (§ 10.115 (21 CFR 10.115)). This guidance document is being implemented immediately without prior public comment, under § 10.115(g)(2), because the agency has determined that prior public participation is not feasible or appropriate. This document provides guidance on statutory requirements that are due to take effect on December 22, 2009, and so it is urgent that FDA explain its enforcement policy before that date.

Interested persons may submit to the Division of Dockets Management (see ADDRESSES) electronic or written comments regarding this document. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

An electronic version of the guidance document is available on the Internet at http://www.regulations.gov and http://www.fda.gov/TobaccoProducts/GuidanceComplianceRegulatoryInformation/default.htm.

Formaldehyde is a high-production chemical that has a wide array of uses. The predominant use of formaldehyde in the United States is in the production of industrial resins (mainly urea, phenol, polyacetal, and melamine resins) that are used primarily to manufacture products such as adhesives and binders for wood products. Other uses include as a chemical intermediate, in agriculture (for example as a fumigant), in the production of paraformaldehyde and chelating agents, embalming and fixative or preservative in the medical and research fields, and as a preservative in numerous consumer products such as cleaning agents and cosmetic products. The predominant use of formaldehyde in the United States is in the production of industrial resins (mainly urea, phenol, polyacetal, and melamine resins) that are used to manufacture products such as adhesives and binders for wood products, pulp and paper, plastics, synthetic fibers, in textile finishing and other products. Formaldehyde has been detected in indoor and outdoor air, surface water and groundwater, soil and food products and is generally considered to be ubiquitous in the environment. Formaldehyde (gas) is currently listed in the 11th RoC as reasonably anticipated to be a human carcinogen, and was nominated for reclassification of its listing status in the 12th RoC.

The NTP announced the RoC review process for the 12th RoC on April 16, 2007, in the Federal Register (72 FR 18999, available at http://ntp.niehs.nih.gov/go/15208). As part of this process, the NTP announced availability of the draft background document for formaldehyde, invited public comments on the draft background document, and announced the formaldehyde expert panel meeting (74 FR 15983, http://ntp.niehs.nih.gov/go/29682). On November 2-4, 2009, the RoC Center convened a ten-member expert panel of scientists from the public and private sectors to evaluate formaldehyde for possible listing in the 12th RoC. Four additional, non-voting, expert scientists were also in attendance to respond to technical concerns from the panel. The expert panel met in a public forum at the Hilton Raleigh-Durham Airport Hotel at Research Triangle Park, NC. The panel was charged to peer review the draft background document for formaldehyde and then to make a recommendation on its listing status in the 12th RoC and to provide a scientific justification for that recommendation. Details about the meeting, including public comments received and the expert panel reports, are available on the RoC Web site (http://ntp.niehs.nih.gov/go/29682). The expert panel report for formaldehyde contains two parts: Part A has the peer-review comments on the draft background document and Part B has the recommendation on listing status and its scientific justification. The expert panel recommended that formaldehyde be listed in the 12th RoC as known to be a human carcinogen.

The RoC Center invites written public comments on the expert panel's recommendation on listing status for formaldehyde and the scientific justification for the recommendation. All comments received will be posted on the RoC Web site and the commenter identified by name, affiliation, and sponsoring organization, if applicable. Persons submitting written comments are asked to include their name and contact information (affiliation, mailing address, telephone and facsimile numbers, e-mail, and sponsoring organization, if any) and send them to Dr. Lunn (see ADDRESSES above). The deadline for submission of written comments is February 8, 2010.

The RoC Center is in the process of finalizing the background document for formaldehyde based upon the expert panel's peer review comments and public comments on the draft document. Persons can register free-of-charge with the NTP listserv (http://ntp.niehs.nih.gov/go/231) to receive notification when the final background document is posted on the RoC Web site. As part of the RoC review process, two government groups will also conduct reviews of formaldehyde; these meetings are not open to the public. Upon completion of these reviews, the NTP will (1) draft a substance profile for formaldehyde that contains its listing recommendation for the 12th RoC and the scientific information supporting that recommendation, (2) solicit public comment on the draft substance profile, and (3) convene a meeting of the NTP Board of Scientific Counselors to peer review the draft substance profile.

The RoC is a Congressionally mandated document that identifies and discusses agents, substances, mixtures, or exposure circumstances (collectively referred to as “substances”) that may pose a hazard to human health by virtue of their carcinogenicity. The RoC follows a formal, multi-step process for review and evaluation of selected chemicals. Substances are listed in the report as either known or reasonably anticipated human carcinogens. The NTP prepares the RoC on behalf of the Secretary of Health and Human Services. Information about the RoC and the review process is available on its Web site (http://ntp.niehs.nih.gov/go/roc) or by contacting Dr. Lunn (see FOR FURTHER INFORMATION CONTACT above).

The IHS currently provides services under regulations in effect on September 15, 1987 and IHS republished at 42 CFR part 136, subparts A-C. Subpart C defines a Contract Health Service Delivery Area (CHSDA) as the geographic area within which CHS will be made available by the IHS to members of an identified Indian community who reside in the area. Residence with a CHSDA or SDA by a person who is within the scope of the Indian health program, as set forth in 42 CFR 136.12, creates no legal entitlement to contract health services but only potential eligibility for services. Services needed but not available at a IHS/Tribal facility are provided under the CHS program depending on the availability of funds, the person's relative medical priority, and the actual availability and accessibility of alternate resources in accordance with the regulations.

As applicable to the Tribes, these regulations provide that, unless otherwise designated, a CHSDA shall consist of a county which includes all or part of a reservation and any county or counties which have a common boundary with the reservation (42 CFR 136.22(a)(6) (2007). The regulations also provide that after consultation with the Tribal governing body or bodies of those reservations included in the CHSDA, the Secretary may, from time to time, re-designate areas within the United States for inclusion in or exclusion from a CHDSA. The regulations require that certain criteria must be considered before any re-designation is made. The criteria are as follows:

(1) The number of Indians residing in the area proposed to be so included or excluded;

(2) Whether the Tribal governing body has determined that Indians residing in the area near the reservation are socially and economically affiliated with the Tribes;

(3) The geographic proximity to the reservation of the area whose inclusion or exclusion is being considered; and

(4) The level of funding which would be available for the provision of contract health services.

Additionally, the regulations require that any re-designation of a CHSDA must be made in accordance with the Administrative Procedures Act (5 U.S.C. 553). In compliance with this requirement, we are publishing this proposal and requesting public comment.

The purpose of this FR notice is to notify the public of the request of the Cowlitz Indian Tribe to expand their SDA as presented in their 08-3 Tribal resolution dated January 5, 2008, and 08-56 Tribal resolution, dated December 06, 2008. The Tribe's request will expand their current SDA which incorporates Cowlitz, Clark, Skamania, King, Pierce, Thurston and Lewis Counties in the State of Washington, to include Columbia County in the State of Oregon, and Kittitas and Wahkiakum Counties in the State of Washington.

Under 42 CFR 136.23 those otherwise eligible Indians who do not reside on a reservation but reside within a CHSDA must be either members of the Tribe or maintain close economic and social ties with the Tribe. In this case, the Tribe estimates the current eligible population will be increased by 35 individuals' enrolled Cowlitz members who are actively involved with the Tribe, but not eligible for health services.

In applying the aforementioned CHSDA re-designation criteria required by operative regulations (43 FR 35654), the following findings are made:

1. Columbia County, Oregon is contiguous with Clark County in the state of Washington. Kittitas County is contiguous to King County and Wahkiakum County is contiguous to Lewis in the State of Washington.

2. These three counties are not part of any other Tribes CHSDA.

3. It is important for the Cowlitz Indian Tribe to be able to deliver health care services to enrolled members residing in these three counties. The Tribe believes eligible Tribal members living in the counties proposed for expansion should also be eligible for CHS.

4. Most of the 35 Tribal members use the Cowlitz Clinic in Longview, Washington for their health care needs. It is estimated that members have a 40 minute drive to receive their health care. These Tribal members do not currently receive care under the CHS program.

5. The financial resources required to meet the immediate needs of the Tribal members residing in the three counties will not be substantial as the Tribe will use existing Federal allocations for contract health funds.

Since CHS is a critical component of the Tribes' overall health care system for its members, the Tribe feels that the members residing in the three counties should be included within the SDA for the Tribe.

Accordingly, after considering the Tribes' request in light of the criteria specified in the regulations, the IHS is proposing to re-designate the SDA for the Tribe to consist of Columbia County in the State of Oregon and Kittitas and Wahkiakum Counties in the State of Washington.

This notice does not contain reporting or recordkeeping requirements subject to prior approval by the Office of Management and Budget under the Paperwork Reduction Act of 1980.

Information Requested

The SRP requests input on the following:

1. Respondent Affiliation: University—SRP-funded (current or past grantee); University—not SRP-funded, US EPA (office/division); ATSDR; Other Federal Government; State/Local Government; Industry; Small Business; Not-for-Profit; General Public; Other.

2. Respondent Additional Contact Information: e-mail, address, phone.

Scope of Science. Part of the SRP strategic planning process is to identify ways to prioritize programmatic direction and to achieve balance given the many competing demands for research on hazardous substances. Respondents may wish to consider: potential for exposure; contaminant recalcitrance; elucidating new toxicity modalities; balance between: hazardous waste & hazardous substances, basic & applied research; emerging & established contaminants, human health & ecological health.

3. Given the breadth of Program mandates, what prioritization criteria should SRP use to guide inclusion of themes and issues to achieve Program balance? Provide specific examples as necessary.

Interdisciplinary Research. To address the complexity of environmental health issues, SRP endorses interdisciplinary research, or, interactions between researchers from a wide range of disciplines relevant to Program mandates.

4. What approaches (research or otherwise) will mostly effectively foster interdisciplinary interactions?

Training. To fulfill SARA mandates, SRP supports graduate training within funded grants. Given the interdisciplinary context of SRP, graduate trainees are exposed to multiple disciplines and, therefore, are well positioned to meet the complex challenges in environmental health as well as mitigation and management of hazardous substances.

5. What approaches or activities should SRP consider to enhance the impact of graduate training?

Identifying Stakeholders. SRP defines “stakeholders” as individuals, groups, or organizations likely to benefit from the SRP. In order to maximize the impact of program science, it is important to know the SRP stakeholders and how to reach them.

6. Who are SRP's stakeholders and what approaches or mechanisms can SRP use to most effectively interact with them?

Research Translation. Research translation is a concerted effort to ensure research is accessible to end-users. SRP supports research translation activities with the goal of accelerating the useful application of SRP science advances. Respondents may wish to consider how the program can accelerate research translation through: effective methods of communication, data sharing, technology transfer, etc…

7. What are the best ways for SRP to achieve its goal of accelerating research translation?

Community Engagement. Community outreach has been a long tradition of the SRP. SRP seeks input to most appropriately focus its community involvement, given the context of a grant program mandated to address hazardous substances. Respondents may wish to consider: which communities to target, what the community needs, what approach is most effective, how to engage communities, etc...

8. What approaches to community engagement are most appropriate for SRP?

9. What disciplines are needed to make the greatest impact in community engagement? Grant Mechanisms. As a university-based grant program, SRP has flexibility to offer a number of grant mechanisms. Grant mechanisms specify the structure of the research team (such as single-project, multi-project), the size of the teams, the disciplines represented, etc. Please consider the following question from this perspective.

10. What research team structure(s) and/or disciplines are needed to make the greatest advances in SRP Program mandates?

11. Additional Comments.

The SRP Web site provides information about the program that may aid in answering the questions. The site can be accessed at http://www.niehs.nih.gov/research/supported/srp/. All questions, except for affiliation, are optional. Please limit each response to 300 words. Responses will be compiled and posted on the SRP Strategic Planning Web site (http://www.niehs.nih.gov/SRP/strategicplan), using affiliation as the only identifier. Information may be summarized and used at a later date. If you submit your responses in a word doc, we ask that you prepare your responses by restating the question in your responses. You may use a variety of tools to respond to the questionnaire; however, all responses must be received not later than January 29, 2010. The following are acceptable ways to submit your responses:

1. Fill out the online questionnaire available on the Superfund Research Program Strategic Planning web page: http://www.niehs.nih.gov/SRP/strategicplan.

2. Copy and paste the above questions into the body of an e-mail message and send your responses to: srpinfo@niehs.nih.gov.

3. Mail or fax your responses in a letter to the attention of “SRP Strategic Planning” at the below address.

In addition to the questionnaire above, SRP will be holding face-to-face and web-based seminars to receive input from the public. For more information about these seminars and the strategic planning process, please visit: http://www.niehs.nih.gov/SRP/strategicplan.

Participation is free and open to the public. Registration requirements are provided on the meeting web pages available from the SRP Strategic Planning Web site: http://www.niehs.nih.gov/SRP/strategicplan. Individuals with disabilities who require special reasonable accommodations should contact Dr. Heather Henry at least seven days prior to the event: (phone) 919-541-5330, (e-mail) henryh@niehs.nih.gov, fax (919) 316-4606.

In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to amend a U.S. Immigration and Customs Enforcement (ICE) system of records titled DHS/ICE-004 Bond Management Information System (73 FR 52865, Sept. 11, 2008) to expand the categories of records and to update the address of one of the system managers. This system of records contains paper and electronic records maintained by ICE to support its immigration bond administration and financial management activities related to the immigration bonds that are posted for detained aliens. The system of records is being amended to include the collection of certain additional information about individuals who post cash bonds for the release of detained aliens in ICE custody (called “obligors”), specifically the obligor's citizenship or immigration status, and the type and number of government-issued identification used by the obligor when posting the cash bond.

Some of the information in this system of records is maintained in BMIS-Web, an immigration bond management database used by the ICE Office of Financial Management to track the life cycle of immigration bonds from the time an individual posts the bond at an ICE Detention and Removal Operations (DRO) field office until the bond is considered closed. The BMIS Web PIA was recently updated to reflect (1) the collection of additional information from the obligor as described above, (2) the establishment of new system connections with the ICE eBONDS application and ICE Federal Financial Management System (FFMS), and (3) the termination of a system connection due to the retirement of an ICE system known as the Debt Collection System (DCOS). The BMIS Web PIA Update is available on the Department of Homeland Security (DHS) Privacy Office Web site at www.dhs.gov/privacy.

The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.

The Privacy Act requires each agency to publish in the Federal Register a description denoting the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency record keeping practices transparent, to notify individuals regarding the uses to which personally identifiable information is put, and to assist individuals to more easily find such files within the agency. Below is the description of the BMIS system of records.

In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this amended system of records to the Office of Management and Budget and to Congress.

Section 1605(a) of the Recovery Act imposes a “Buy American” requirement on Recovery Act funds used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the Federal Register.

In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on December 4, 2009, HUD granted the following two exceptions to the Buy American requirement:

1. San Antonio Housing Authority. Upon request of the San Antonio Housing Authority, HUD granted an exception to applicability of the Buy American requirements with respect to work, using CFRFC grant funds, in connection with the Lewis Chatham modernization project. The exception was granted by HUD on the basis that the relevant manufactured good is not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.

2. Housing Authority of Portland. Upon request of the Housing Authority of Portland, HUD granted an exception to applicability of the Buy American requirements with respect to work, using CFRFC grant funds, in connection with several modernization projects to replace the flooring. The exception was granted by HUD on the basis that the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.

The Advisory Board was established to advise the Secretary of the Interior, through the Assistant Secretary—Indian Affairs, on the needs of Indian children with disabilities, as mandated by the Individuals with Disabilities Act of 2004 (Pub. L. 108-446). The meetings are open to the public.

The following items will be on the agenda:

• Setting Advisory Board Priorities for 2010-2011

• Public Comment (via conference call, January 11, 2010, meeting only*)

• Report from Gloria Yepa, Supervisory Education Specialist, Bureau of Indian Education, Division of Performance and Accountability

• Appointment of Advisory Board Vice Chair

• Updates on Coordination of Services

• Panel discussion with Special Education faculty, General Education faculty and Related Service providers from Sky City Community School, Acoma, New Mexico

• Discussion of new Charter

* During the January 11, 2010, meeting, time has been set aside for public comment via conference call from 1-1:30 p.m. Mountain Standard Time. The call-in information is: Conference Number 1-888-387-8686, Passcode 4274201.

This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary-Indian Affairs by Part 209 of the Departmental Manual.

A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 986; 25 U.S.C. 467), for the tract of land described below. The land was proclaimed to be an addition to and part of the Reservation of the Pueblo of Jemez for the exclusive use of Indians on that reservation who are entitled to reside at the reservation by enrollment or tribal membership.

A Parcel of land, containing 5.0 acres, more or less, known as Tract Two (2) within Private Claim 340 in the Pecos Pueblo Grant, Santa Fe County, New Mexico, more particularly described as follows:

Beginning at the Southeast corner of the tract, from whence a U.S.G.L.O. Brass Cap set for the 1/4 corner common to Section 36, T 16 N, R 11 E and Section 31, T 16 N, R 12 E, bears:

The above-described lands contain a total of 5.0 acres, more or less, which are subject to all valid rights, reservations, rights-of-way, and easements of record.

This proclamation does not affect any of the following: (1) Title to the land described above; (2) valid existing easements for public roads, highways, or utilities; (3) valid existing easements for railroads or pipelines; or (4) other rights-of-way or reservations of record.

Pursuant to 25 CFR 83.10(h), the Department gives notice that the Acting PDAS-IA proposes to determine that the Shinnecock Indian Nation, P.O. Box 5006, Southampton, NY 11969-0751, c/o Messrs. Frederick C. Bess, Randall King, and Gordell Wright, is an Indian Tribe within the meaning of Federal law. This notice is based on a preliminary finding that the petitioner satisfies the seven mandatory criteria for acknowledgment set forth in 25 CFR 83.7(a) through (g), and thus, meets the requirements for a government-to-government relationship with the United States.

The Department publishes this notice in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs (AS-IA) by 209 DM 8. The AS-IA delegated authority to sign some Federal acknowledgment findings, including this PF, to the Acting PDAS-IA effective June 4, 2009.

The Shinnecock Indian Nation, Petitioner #4, submitted a letter of intent to petition for Federal acknowledgment on February 8, 1978. It submitted partial documentation in 1998, and made multiple submissions in 2003. The petition was ready for evaluation on September 15, 2003. Under the May 23, 2008, Federal Register notice of guidance and direction regarding OFA's internal procedures (73 FR 30146), OFA recommended a waiver of the regulatory provisions regarding the priority for consideration of the petitioner. The AS-IA placed the Shinnecock petitioner on active consideration November 10, 2008, ahead of six other petitioners.

The Shinnecock petitioner claims that the Federal Government recognized it at various times from 1889 to the present, and, therefore, it would be eligible to be evaluated under 25 CFR 83.8, which reduces the burden of evidence required of previously acknowledged petitioners. The evidence in the record shows that the Federal Government was aware of the Shinnecock, but never established a relationship with it. To qualify for evaluation under § 83.8, there must be substantial evidence that the Federal Government, by its actions, unambiguously established a political relationship with the petitioner as an Indian Tribe, not that the Federal Government was merely aware of the petitioner's existence. There is not substantial evidence of unambiguous Federal acknowledgment in the record. Therefore, the petitioner is not eligible to be evaluated under 25 CFR 83.8. An evaluation under section § 83.7 rather than section § 83.8 does not result in a different finding. Whether the petitioner is eligible to be evaluated under § 83.8 of the regulations is subject to reconsideration at the time of the final determination.

The May 23, 2008, Federal Register notice of guidance and direction included a provision interpreting “first sustained contact” as on or after March 4, 1789, thus “reducing the time period for which petitioners must submit evidence.” Petitioners like the Shinnecock, which experienced first sustained non-Indian contact prior to March 4, 1789, are required to demonstrate continuous existence from 1789 only.

The Shinnecock Indians lived on a historical land base on and near Shinnecock Neck, near the eastern end of Long Island, New York, since first contact in the early 1600s to the present. In 1703, the Town of Southampton agreed to lease approximately 3,500 acres of the Shinnecock Hills and Neck to the Shinnecock Indians for 1,000 years. In 1792, the New York Assembly passed legislation that reorganized the Indians on the Shinnecock leasehold under a three-man Indian Trusteeship in which the Indians would elect trustees annually. In 1859, the State of New York passed legislation regarding the 1,000-year lease to the Shinnecock Indians and granted the Shinnecock Indians title in fee simple to a much smaller parcel of land. This reduced land base, consisting of approximately 650 acres, is the current New York State “reservation” inhabited by the Shinnecock petitioner today.

The Shinnecock petitioner meets criterion 83.7(a), because external observers have identified it as an American Indian entity on a substantially continuous basis since 1900. The record contains acceptable identifications of the petitioner nearly every year since 1900; this is sufficient to satisfy the criterion. Evidence that identifies the petitioner appears in the records of the Town of Southampton, the State of New York, and the Federal Government. Furthermore, scholarly writings identify the petitioner as an American Indian entity, as do writings from newspapers and magazines. Although some documents in the record express doubt that the petitioner is an American Indian entity, the criterion allows for occasional questioning of the petitioner's Indian character, holding that such evidence “shall not be considered to be conclusive evidence that this criterion has not been met.” Therefore, the petitioner satisfies criterion 83.7(a).

The Shinnecock petitioner meets criterion 83.7(b) under a “cross-over” provision in the regulations at § 83.7(b)(2)(v). This cross-over provision allows groups to meet criterion 83.7(b) for a particular period in time provided that they meet criterion 83.7(c) during that same period using a form of evidence which is sufficient in itself to demonstrate political influence and authority. Such forms of evidence are described at § 83.7(c)(2). The Shinnecock petitioner meets criterion 83.7(b) from 1789 to the present because it meets criterion 83.7(c) during that same period using the form of evidence described in § 83.7(c)(2)(i).

The Shinnecock petitioner meets criterion 83.7(c) from 1789 to the present using the form of evidence described at § 83.7(c)(2)(i), that a petitioner allocates “group resources such as land, residence rights and the like on a consistent basis.” This form of evidence is sufficient in itself to demonstrate the presence of political influence within a group as required by criterion 83.7(c). The evidence in the record demonstrates that the Indian group located at Shinnecock Neck and its leaders have maintained a Trusteeship system that has allocated land, residence rights, and the like from 1789 to the present. The Shinnecock petitioner also defended its common land base through litigation, and the Shinnecock petitioner has managed the land base for the benefit of the group's members. The evidence for political influence and authority showing the petitioner meets criterion § 83.7(c)(2) from 1789 to the present also provides sufficient cross-over evidence to demonstrate the Shinnecock petitioner meets criterion § 83.7(b) for community from 1789 to the present as provided at § 83.7(b)(2)(v).

The Shinnecock petitioner meets the requirements of criterion § 83.7(d), even though it does not have a formal, written governing document. A combination of written statements, historical New York State legislation, and group actions define the historical governance of the group. Meeting minutes reflect the petitioner's efforts since 2003 to finalize a constitution. Historically, the petitioner required that any individual awarded an allotment of land on the reservation be a “Blood Shinnecock,” that is, a descendant of any of four historical individuals born between 1757 and 1810: Paul Cuffee, James Bunn, Charles Kellis, or David Waukus. Since 1978, the petitioner has developed membership criteria that require a demonstration of descent from a Shinnecock reservation resident as enumerated on the Indian Population schedule of the 1900 or 1910 Federal census of Southampton, Suffolk County, New York.

The Shinnecock petitioner meets the requirements of criterion 83.7(e). The petitioner's membership list of January 8, 2009, includes 1,066 adult and minor members. A total of 1,022 of these members, or 96 percent, demonstrate descent from Indian residents of the 1865 Shinnecock reservation, which the Department determined to be a reliable list of members of the historical Shinnecock Tribe for the purposes of this PF.

The petitioner submitted membership lists in 1998 (1,363 members), 2003 (1,330 members), 2008 (994 members and 275 members “placed in pending file”), and 2009 (1,066 members). No new members have been added since 1998. In January 2009, the petitioner “disenrolled” 201 members when it determined there was insufficient evidence of descent and furnished descent documentation for most of the 169 individuals submitted as “potential” members. Evidence shows that some disenrolled members reside on the reservation and were permitted to vote in the 2009 trustee election, and that some potential members reside on the reservation and were permitted to vote in 2009 and previous trustee elections. The 2009 trustee voter list includes three other individuals not on any type of membership list. For these reasons, the Department's evaluation was not limited to the 2009 membership list.

Evidence identifies 113 historical individuals associated with the Shinnecock reservation 1792-1799, but the petitioner's members demonstrate descent from individuals appearing on or near the reservation after that time. A few pre-1800 reservation residents continued to serve as Shinnecock trustees and petition signers through the 1820s alongside individuals who most likely include those known to have married Shinnecock women before 1800, but whose identities are not in the record. Genealogical evidence demonstrates that descendants of some of the 1800-1820s reservation residents resided on the reservation in 1865. Additional evidence for the Shinnecock population 1800-1865 may be submitted during the comment period to provide further context.

The Department finds that the historical Tribe is the Shinnecock Indian Tribe of the Shinnecock leasehold in 1789. This historical Indian Tribe continued to evolve and exist up to 1865. The earliest record to state plainly that it is an enumeration of all residents of the Shinnecock reservation is in the 1865 New York State census of Southampton. For purposes of criterion 83.7(e), current members who demonstrate descent from an Indian on the 1865 State census of the Shinnecock reservation are deemed to demonstrate descent from the historical Shinnecock Tribe. The petitioner demonstrates such descent at an acceptable level whether the analysis considers the current members only (1,022 of 1,066, or 96 percent), the current and disenrolled members (1,030 of 1,267, or 81 percent), or the current, disenrolled, and potential members (1,178 of 1,436, or 82 percent). The current, disenrolled, and potential members who lack evidence of descent for the PF are closely related as kin to current members with demonstrated descent from the 1865 reservation residents. The Department anticipates that they should be able to locate the documentation necessary to resolve the few missing generation-to-generation connections.

The Shinnecock petitioner meets the requirements of criterion 83.7(f). Since the petition contained evidence of only four members enrolled in Federally recognized Tribes, OFA researchers did not examine any Tribal rolls for the presence of the petitioner's members. Evidence in the record indicates that the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian Tribes.

The Shinnecock petitioner meets criterion 83.7(g), because there is no evidence that Congress has either terminated or forbidden a Federal relationship with the petitioner or its members.

Based on this preliminary factual determination, the Department proposes to extend Federal acknowledgment under 25 CFR Part 83 to the petitioner known as the Shinnecock Indian Nation.

As provided by 25 CFR 83.10(h) of the regulations, a report summarizing the evidence, reasoning, and analyses that are the basis for the proposed decision will be provided to the petitioner and interested parties, and is available to other parties upon written request. Requests for a copy of the report of evidence should be addressed to the Federal Government as instructed in the ADDRESSES section of this notice. It will be posted on the Department's Indian Affairs Web site at http://www.bia.gov.

Consistent with 25 CFR 83.10(l), the Department will consult with the petitioner within two weeks of the close of the response period (or the close of the comment period if neither the petitioner nor parties submit comments or Shinnecock waives its response period to submissions) to discuss any issues related to an equitable timeframe for consideration of all written arguments and evidence received during the comment and response periods. The Department will issue a final determination (FD) regarding the petitioner's status within 60 days of the date active consideration begins for the Shinnecock FD.

This PF meets the December 15, 2009, deadline the petitioner and U.S. negotiated in a settlement agreement that the Court approved by order on May 26, 2009, in Shinnecock v. Salazar, No. CV-06-5013, 1 (E.D.N.Y.). To the extent that the schedule for processing the Shinnecock petition under the agreement differs from the regulatory timelines provided by the regulations in 25 CFR Part 83, the settlement agreement controls. Under the terms of the settlement agreement, any individual or organization wishing to challenge or support the PF may submit factual or legal arguments and evidence, to rebut or support the evidence relied upon, by the date set out in the ADDRESSES section of this notice. However, if the Shinnecock petitioner or an interested party requests additional time in writing, the Department will extend the comment period to the full 180 days that would otherwise be available under the regulations at 83.10(i).

During the comment period, the Shinnecock petitioner and the interested parties may request in writing that the AS-IA hold a formal, on-the-record technical assistance meeting as provided by the acknowledgment regulations at § 83.10(j)(2). To accommodate the shortened comment period, requests for such a meeting on the Shinnecock PF must be received by the Department within 30 calendar days of the publication of this Federal Register notice.

The settlement agreement provides the petitioner 30 days to respond to comments on the PF submitted by interested or informed parties. This reduced response period starts automatically at the close of the comment period. The petitioner may request restoration of the full 60-day response period, although it must notify the Department in writing prior to the close of the response period. If parties do not submit comments or if the petitioner submits a written waiver to the interested and informed party submissions, the response period will not apply.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

You may obtain copies of the document for review by contacting the individual named above. You may also make an appointment to view the document at the above address during normal business hours.

Under a Safe Harbor Agreement, participating landowners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species listed under the Act (16 U.S.C. 1531 et seq.). Safe Harbor Agreements, and the subsequent Enhancement of Survival Permits that are issued pursuant to Section 10(a)(1)(A) of the Act, encourage private and other non-Federal property owners to implement conservation efforts for listed species by assuring property owners that they will not be subjected to increased property use restrictions as a result of their efforts to attract listed species to their property, or to increase the numbers or distribution of listed species already on their property. Application requirements and issuance criteria for Enhancement of Survival Permits through Safe Harbor Agreements are found in 50 CFR 17.22(c) and 17.32(c). These permits allow any necessary future incidental take of covered species above the mutually agreed upon baseline conditions for those species in accordance with the terms and conditions of the permits and accompanying agreements.

This Agreement was developed by the Service and the Applicant. The Sacramento River Conservation Area Forum is a non-profit organization that evolved from 1986 State of California legislation (SB1086). The legislation called for a management plan to protect, restore and enhance the fisheries and riparian habitat along the Sacramento River from Keswick Dam down river to Verona, California. This effort is cooperative in nature and works to ensure that habitat restoration and management addresses not only the dynamics of riparian ecosystems, but also the realities of local agricultural and recreational issues associated with land use changes occurring along the Sacramento River.

The Agreement is expected to promote the recovery of the Covered Species on non-Federal properties within the Sacramento River Conservation Area within Shasta, Tehama, Butte, Glenn, Colusa, Yolo, and Sutter Counties. The proposed duration of the Agreement and the associated Enhancement of Survival permit are 30 years. The proposed Enhancement of Survival permit would authorize the incidental taking of the Covered Species associated with: the restoration, enhancement, and maintenance of suitable habitat for the Covered Species; routine activities associated with agricultural lands management; minor flood risk management; and the potential future return of any property included in the Agreement to baseline conditions. Under this Agreement, individual landowners (Cooperators) may include their properties by entering into a Cooperative Agreement with the Applicant. Each Cooperative Agreement will specify the restoration and/or enhancement, and management activities to be carried out on that specific property and a timetable for implementing those activities. All Cooperative Agreements will be reviewed by the Service to determine whether the proposed activities will result in a net conservation benefit for the Covered Species and meet all required standards of the Safe Harbor Policy (64 FR 32717). Upon Service approval, the Applicant will issue a Certificate of Inclusion to the Cooperator. Each Certificate of Inclusion will extend the incidental take coverage conferred by the Enhancement of Survival permit to the Cooperator. Certificates of Inclusion will be valid for a period of 10 years and are renewable during the 30-year term of the Enhancement of Survival permit. Specific determinations for which species will be covered under each Cooperative Agreement will be determined by the Service on a case by case basis and will depend on the type of habitat present and the restoration and/or enhancement activities that will be implemented by the Cooperator.

Baseline levels for the Covered Species will be determined by completing the Baseline Habitat Worksheet (Attachment 4 of the Agreement), which will be completed by a person approved by the Service. The Service will review each baseline determination prior to the Applicant issuing a Certificate of Inclusion to the Cooperator. The Agreement also contains a monitoring component that requires the Applicant to ensure that the Cooperators are in compliance with the terms and conditions of the Agreement and maintaining baseline levels of habitat for the Covered Species. Results of these monitoring efforts will be provided to the Service by the Applicant in an annual report.

Upon approval of this Agreement, and consistent with the Service's Safe Harbor Policy (64 FR 32717), the Service would issue an Enhancement of Survival permit to the Applicant. This permit will authorize Cooperators issued a Certificate of Inclusion take of the Covered Species incidental to the implementation of the management activities specified in the Agreement, incidental to other lawful uses of the property including normal, routine land management activities, and to return to baseline conditions if desired. An applicant would receive assurances under our “No Surprises” regulations (50 CFR 17.22(c)(5) and 17.32(c)(5)) for all species included in the Enhancement of Survival permit. In addition to meeting other criteria, actions to be performed under an Enhancement of Survival permit must not jeopardize the existence of Federally listed fish, wildlife, or plants.

The Service has made a preliminary determination that the proposed Agreement and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). We explain the basis for this determination in an Environmental Action Statement that is also available for public review.

Individuals wishing copies of the Environmental Action Statement, and/or copies of the full text of the Agreement, including a map of the proposed permit area, should contact the office and personnel listed in the ADDRESSES section above.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The Service will evaluate this permit application, associated documents, and comments submitted thereon to determine whether the permit application meets the requirements of section 10(a) of the Act and NEPA regulations. If the Service determines that the requirements are met, we will sign the proposed Agreement and issue an enhancement of survival permit under section 10(a)(1)(A) of the Act to the Applicant for take of the Covered Species incidental to otherwise lawful activities in accordance with the terms of the Agreement. The Service will not make our final decision until after the end of the 30-day comment period and will fully consider all comments received during the comment period.

The Service provides this notice pursuant to section 10(c) of the Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6).