The Office of Personnel Management (OPM) is amending 5 CFR 831.613(e) and 5 CFR 842.605(e) to add persons in same-sex domestic partnerships to the relationships listed as having a presumption of an insurable interest under §§ 831.613(e)(1) and 842.605(e)(1). Retiring employees and Members of Congress (Members), who submit evidence to demonstrate that they are in good health and who are not retiring on disability are generally able to elect a reduced annuity to provide an insurable interest survivor annuity. However, the employee or Member must establish that the person elected has an insurable interest in the continued life of the employee or Member. An insurable interest in the continued life of a retiring employee or Member is presumed to exist for certain relationships listed under §§ 831.613(e)(1) and 842.605(e)(1). Currently, the relationships listed under §§ 831.613(e)(1) and 842.605(e)(1) include the following: Spouses, former spouses, blood or adopted relatives closer than first cousins, common law spouses, or persons to whom employees or Members are engaged to be married. If employees or Members elect an insurable interest annuity for a person who does not fall under one of these categories, the employee or Member must submit affidavits along with his or her election to establish the existence of a relationship between the named beneficiary of the election and the employee or Member, the extent to which the named beneficiary is dependent on the employee or Member, and the reasons why the named beneficiary might reasonably expect to derive financial benefit from the continued life of the employee or Member. Without such proof, the employee or Member will fail to meet the statutory requirement to establish the insurable interest relationship and the election will be denied.

Pursuant to the President's June 2, 2010, Memorandum for the Heads of Executive Departments and Agencies on Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, OPM proposes to add to the relationships listed in §§ 831.613(e) and 842.605(e) of the United States Code of Federal Regulations those individuals who have entered into a domestic partnership with an individual of the same sex who is a retiring employee or Member. For the purposes of these regulations, an insurable interest will be presumed to exist for employees or Members having a same-sex domestic partner. The term “domestic partnership” has the same meaning as that ascribed to it in the Memorandum issued by OPM Director Berry on June 2, 2010, to Heads of Executive Departments and Agencies concerning Implementation of the President's Memorandum Regarding Extension of Benefits to Same-Sex Domestic Partners of Federal Employees. See http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=2982.

To demonstrate eligibility to elect an insurable interest annuity, at retirement, OPM will ask employees and Members to provide proof to establish the existence of, or former existence of, his or her domestic partnership, in addition to evidence of his or her good health.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to retired employees or Members who elect an insurable interest annuity for a person with whom they have entered into a domestic partnership or civil union.

For the reasons discussed in the preamble, the Office of Personnel Management is proposing to amend 5 CFR parts 831 and 842 as follows:

This supplementary information section is organized as follows:

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) also invite comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to DHS and USCIS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions: All submissions received must include the agency name and DHS Docket No. USCIS-2008-0014. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020.

Congress has established limits on the number of alien workers who may be granted H-1B nonimmigrant visas or status each fiscal year (commonly known as the “cap”). See Immigration and Nationality Act (INA) section 214(g), 8 U.S.C. 1184(g). With a few exceptions, the total number of aliens who may be accorded H-1B nonimmigrant status during any fiscal year currently may not exceed 65,000. See INA sec. 214(g), 8 U.S.C. 1184(g). The ability of employers to fill available U.S. jobs with aliens otherwise eligible for the H-1B nonimmigrant classification generally depends on when the employers filed petitions for such workers and the number of such petitions that USCIS has approved to allow workers to begin employment during the course of the fiscal year ( i.e., October 1 through September 30). USCIS, however, may only accord H-1B status in the order in which it receives the H-1B petitions. See INA sec. 214(g)(3), 8 U.S.C. 1184(g)(3).

USCIS monitors the requests for H-1B workers and administers the distribution of available H-1B cap numbers in light of these limits. The first day on which petitioners may file H-1B petitions can be as early as six months ahead of the projected employment start date. See 8 CFR 214.2(h)(9)(i)(B). During years of high demand for H-1B workers, the H-1B cap has been reached within days of the opening of the H-1B filing period for a new fiscal year. In practical terms, this means that the cap has been reached on or shortly after April 1 (which is six months before the start of a new fiscal year). For example, in FY 2009, USCIS received nearly 163,000 H-1B petitions between April 1 and April 7, 2008. See e.g. USCIS Update, “USCIS Releases Preliminary Number of H-1B Cap Filings,” http://www.uscis.gov/files/article/USCIS%20Update_H1B_Preliminary%20Count1_10Apr08.pdf.

To ensure the fair and orderly distribution of H-1B cap numbers, USCIS employs a random selection process after announcing a final date on which it will receive H-1B petitions. USCIS refers to this day as the “final receipt date.” See 8 CFR 214.2(h)(8)(ii)(B). In past fiscal years, the final receipt date has been as early as the first day after USCIS began accepting H-1B petitions for the new fiscal year. In Fiscal Year 2010, due to the struggling economy and high unemployment rates, the final receipt date was not reached until December 21, 2009. Petitions submitted properly on the “final receipt date” undergo a random selection process to determine which petitions can be processed to completion and, if otherwise eligible, which beneficiaries are able to receive a new H-1B visa number.

USCIS has found that when it receives a significant number of H-1B petitions ( e.g., 100,000 or more) within the first few days of the H-1B filing period, it is difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, after expending USCIS resources to ensure proper processing of these petitions, USCIS must reject and return to the petitioning employer those petitions and associated fees that are not randomly selected as eligible for an H-1B cap number. U.S. employers are also adversely affected by the current petition process. Preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition must ultimately be returned because the cap was reached and the petition was not selected in the random selection process.

Requiring U.S. employers to file complete H-1B petitions prior to the random selection process is not the most efficient way to administer the allocation of available H-1B cap numbers. USCIS is proposing an alternate, more streamlined mechanism for allocating H-1B cap numbers and administering the H-1B cap.

Before employing an H-1B temporary worker, a U.S. employer must first obtain a certification from the U.S. Department of Labor (DOL) confirming that it has filed a Labor Condition Application (LCA) in the occupational specialty in which the alien will be employed. See 8 CFR 214.2(h)(4)(i)(B)( 1 ) and 8 CFR 214.2(h)(1)(ii)(B)( 3 ). Upon certification of the LCA, the employer may then file an H-1B petition with USCIS on Form I-129, Petition for a Nonimmigrant Worker. Once USCIS accepts a properly filed H-1B petition, it adjudicates the petition. USCIS will notify the petitioner in writing if it requires additional information before rendering a written decision to approve or deny the petition. See 8 CFR 103.2(a)(8) and 214.2(h)(9) and (10). An approved H-1B petition is valid for a period of up to three years and may not exceed the validity period of the LCA. See 8 CFR 214.2(h)(9)(iii)(A)( 1 ).

Prior to the expiration of the initial H-1B status, the petitioning employer may apply for an extension of stay, or a different employer may petition on behalf of the temporary worker. See 8 CFR 214.2(h)(2)(i)(D), (h)(15)(ii)(B). An extension of stay generally may only be granted for a period of up to three years, such that the total period of the H-1B temporary worker's admission does not exceed six years. See INA 214(g)(4), 8 U.S.C. 1184(g)(4); 8 CFR 214.2(h)(15)(ii)(B)( 1 ). As with initial H-1B petitions, the petitioning employer must first obtain a certified LCA from DOL before applying for the extension of stay. At the end of the six-year period, 1 in most cases, the alien must change to another nonimmigrant status, seek permanent resident status, or depart the United States. The alien may be eligible for a new six-year maximum period of stay in H-1B nonimmigrant status if he or she remains outside the United States for at least one year. See 8 CFR 214.2(h)(13)(iii)(A).

Most aliens seeking a new H-1B nonimmigrant classification are subject to a numerical cap of 65,000 visas each fiscal year. Exempt from this 65,000 cap are aliens who: (1) Are employed at, or have received an offer of employment from, an institution of higher education, or a related or affiliated nonprofit entity; (2) are employed at, or have received an offer of employment from, a nonprofit research organization or a governmental research organization; or (3) have earned a master's or higher degree from a U.S. institution of higher education. INA sec. 214(g)(5), 8 U.S.C. 1184(g)(5). The exemption for aliens who have attained a U.S. master's degree or higher is capped at 20,000 H-1B petitions per fiscal year (“20,000 cap”). See INA sec. 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C).

The spouses and children of H-1B nonimmigrants, classified as H-4 nonimmigrants, do not count toward the 65,000 and 20,000 caps. See INA sec. 214(g)(2), 8 U.S.C. 1184(g)(2); 8 CFR 214.2(h)(8)(ii)(A). In addition, USCIS does not apply the 65,000 and 20,000 caps in the following cases:

• Requests for H-1B petition extensions;

• Requests for extensions of stay in the United States; and

• Petitions filed on behalf of aliens who are currently in H-1B nonimmigrant status but seek to change the terms of current employment, change employers, 2 or work concurrently under a second H-1B petition.

These aliens have already been counted towards either the 65,000 or 20,000 cap in previous years. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7); 8 CFR 214.2(h)(8)(ii)(A).

To manage the 65,000 and 20,000 caps, USCIS monitors the number of H-1B petitions it receives at each service center. The first day on which petitioners may file H-1B petitions can be as early as six months ahead of the projected employment start date. See 8 CFR 214.2(h)(9)(i)(B). For example, a U.S. employer seeking an H-1B worker for a job beginning October 1 (the first day of the next fiscal year) can file an H-1B petition no earlier than April 1 of the current fiscal year. Thus, an H-1B employer requesting a worker for the first day of FY 2012, October 1, 2011, would be allowed to file an H-1B petition on April 1, 2011. When USCIS determines, based on the number of H-1B petitions it has received for a cap season, that the 65,000 or 20,000 cap will be reached, it announces to the public the final day on which H-1B petitions can be filed for that cap season.

USCIS then randomly selects the number of petitions needed to reach the H-1B cap. The random selection process includes all petitions received on the final receipt date. USCIS makes projections on the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. See 8 CFR 214.2(h)(8)(ii)(B). USCIS then randomly selects approximately 15-20% over the regular cap number of 65,000 and approximately 5-10% over the master's degree cap number of 20,000.

If USCIS receives sufficient H-1B petitions to reach the 65,000 and 20,000 caps for the upcoming fiscal year within the first five business days, USCIS randomly selects from all H-1B petitions filed within the first five business days, beginning first with H-1B petitions subject to the 20,000 cap. Id. Once the random selection process for the 20,000 cap is complete, USCIS conducts the random selection process for the 65,000 cap. Once the random selection process for the 65,000 cap is complete, USCIS rejects all remaining H-1B petitions, including those not selected during one of the random selections. USCIS also rejects all H-1B petitions received after the final receipt date. See 8 CFR 214.2(h)(8)(ii)(D).

This proposed rule is designed to alleviate many of the difficulties and inefficiencies stemming from the current H-1B allocation process and to simplify the allocation of available H-1B cap numbers. The registration requirement also will aid USCIS in the administrative front-end processing of cap-subject H-1B petitions.

For example, during the first five business days of filing for FY 2009, USCIS received approximately 163,000 H-1B petitions, well in excess of the available H-1B cap numbers. Some of the front-end processing activities associated with handling this exceptionally high volume of receipts include, but are not limited to, opening and sorting mail, identifying properly filed petitions, placing petitions through the random selection process, notifying petitioners of selected petitions, receipting fees and entering data for selected petitions, and returning all of the nonselected and improperly filed petitions with associated fees.

Since USCIS first created the random selection process in 2005, it has twice received significant numbers of H-1B petitions that exceeded the 65,000 and 20,000 caps on April 1, the first day the petitions could be filed for a new fiscal year. Petitioning employers rushed to file H-1B petitions for FY 2008, because in the previous fiscal year, USCIS reached the H-1B cap on the second filing day. See USCIS Update, “USCIS Updates Count of FY 2008 H-1B Cap Filings,” http://www.uscis.gov/files/pressrelease/H1Bfy08CapUpdate041007.pdf. Many petitioning employers apparently anticipated a similar shortage of H-1B cap numbers for FY 2009 and, as a result, hurried to file the petitions to ensure USCIS received them at the start of the filing period. In an effort to relieve some of the burdens associated with handling the huge volumes of petitions received on the first filing day, USCIS amended the regulations pertaining to the random selection process on March 24, 2008. See 73 FR 15389.

Although the current regulations at 8 CFR 214.2(h)(8)(ii)(B) provide some relief by authorizing USCIS to include in the random selection process all petitions filed during the first five business days, USCIS proposes to take further measures to alleviate administrative burdens and the current uncertainty faced by petitioners who must prepare and submit H-1B petitions for all potential beneficiaries. Petitioning employers often expend significant time and resources to prepare the H-1B petition for submission. These resources and costs are expended for every potential H-1B worker the employer wants to hire, regardless of whether the petition will ultimately be adjudicated by USCIS.

USCIS proposes to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions for alien workers subject to either the 65,000 or 20,000 caps. See proposed 8 CFR 214.2(h)(8)(ii). The electronic registration process would be in advance of the start of the period during which actual petitions can be filed for a new fiscal year ( i.e., immediately prior to April 1). This process would require U.S. employers to register for consideration of available H-1B cap numbers in advance of having to file and receive a certified LCA from the DOL.

This rule also proposes to establish processes for selecting registrations. Upon notification of selection by USCIS, a registrant would proceed to submit the LCA to DOL for certification and prepare the corresponding H-1B petition on behalf of the desired beneficiary. USCIS would reject any H-1B petition filing that is not based on a selected registration. The proposed registration requirement, which would take approximately 30 minutes to complete, is preferable for petitioners because selected registrations would have a higher probability of receiving an H-1B slot before petitioners would be required to expend the time and expenses necessary to complete H-1B petitions.

The proposed registration process would greatly improve the agency's ability to manage the H-1B cap and reduce the burden on petitioning employers in terms of up-front form preparation and filing fee submission. Below is a more detailed discussion of the proposed registration process and petition filing procedures for H-1B petitions subject to registration.

USCIS proposes to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions for alien workers subject to either the 65,000 or 20,000 cap. See proposed 8 CFR 214.2(h)(8)(ii)(B)( 1 ). The entire Internet registration process would commence each year in advance of the filing period for actual petitions.

The proposed rule would clarify USCIS's discretionary authority to temporarily suspend the H-1B registration process for any given fiscal year or to permanently terminate the registration process. USCIS would notify the public of any program suspension or termination via an update on the USCIS public Web site. Proposed 8 CFR 214.2(h)(8)(ii)(A)( 3 ). The public frequently turns to the USCIS Web site for information and uses the USCIS Web site for general information on immigration benefits rules and processes, statutes and regulations, downloadable immigration forms, specific case status information, and processing times at the various service centers and district offices. Some members of the public sign up for e-mail alerts that provide the latest information posted on the USCIS Web site regarding particular applications, petitions, or visa classifications. Because of the wide use of the USCIS Web site by the public, the posting of information on the dates of suspension or termination of the registration process on the USCIS Web site would provide a timelier and more efficient method of disseminating such information to the public than publication of the information in the Federal Register. For example, USCIS may need to suspend or terminate the availability of the registration process in the event that Congress greatly increases the annual number of H-1B visas that USCIS may allocate each fiscal year. This rule would afford USCIS the flexibility to adapt quickly when various contingencies arise while providing the public with adequate notice of any impact on the registration availability.

Under the proposed registration process, each petitioning employer would be required to file registrations electronically through the USCIS Web site ( http://www.uscis.gov ) in accordance with the instructions provided. See proposed 214.2(h)(8)(ii)(B)( 1 ). USCIS proposes to establish a registration period that would begin no later than in the month of March each year, for a minimum period of two weeks. USCIS would notify the public of the respective start and end dates for the registration period via the USCIS Web site ( http://www.uscis.gov ). See proposed 8 CFR 214.2(h)(8)(ii)(A)( 2 ). All registrations would be required to be filed during the timeframes announced by USCIS on its public Web site. USCIS would not accept any registrations filed either before or after the close of the specified registration period. USCIS invites the public to comment on whether the proposed start of the registration period would be sufficient time for prospective petitioners to submit their registrations.

Note that each annual registration period would be treated as separate from any earlier registration period. Therefore, employers from a previous registration period would not be automatically entered into a new registration period.

This rule proposes that registrations must include basic information regarding the company and beneficiary: (1) The employer's name, employer identification number (EIN), and employer's mailing address; (2) the authorized representative's name, job title, and contact information (telephone number and e-mail address); (3) the beneficiary's full name, date of birth, country of birth, country of citizenship, gender and passport number; and (4) any additional information requested by the registration or USCIS. Proposed 8 CFR 214.2(h)(8)(ii)(B). USCIS seeks public comments on the type of information requested and whether the list should be expanded or in any way changed for U.S. employers.

USCIS has determined that the content noted above is the minimum information that USCIS will need to identify the prospective H-1B petitioner and specific named beneficiary, to eliminate duplicate registrations, and to match approved and selected registrations with subsequently filed H-1B petitions.

USCIS proposes to require U.S. employers who choose to participate in the registration process to file a single registration for each prospective H-1B temporary worker they seek to hire. Multiple beneficiaries cannot be listed on a single registration. In addition, petitioners may not file multiple registrations for the same H-1B beneficiary. USCIS recognizes that, because this would be a new system, petitioners or their preparers may accidentally or unintentionally submit more than one registration on behalf of a single beneficiary. Therefore, this rule proposes that if USCIS receives more than one registration for a single H-1B beneficiary by the same petitioner, USCIS will accept the first valid registration and reject any subsequent duplicate requests.

Each U.S. employer who submits a properly completed H-1B Cap Registration request online will receive electronically an automatic notification that the registration request has been accepted by USCIS (note, acceptance is not the same as selection). The notification will be in a printable format and contain a unique identifying number for USCIS tracking and recordkeeping purposes. Registering employers can retain a hard copy of the acceptance notification for their files. USCIS also proposes to assign a unique identifying number for each registration, which would be included on the electronic notification of registration acceptance.

In the event that the number of registrations is less than the number of available cap numbers before the first day that H-1B petition filings may be made ( e.g., April 1), USCIS would announce on its Web site that the registration period will remain open until such time as USCIS determines it has enough registrations to reach the cap. If the number of registrations received during the initial registration period is less than what is needed to reach the cap, all registrations accepted during that initial period would be selected. At such time USCIS believes it has enough registrations to meet the cap, it will announce the closing of the registration period on the USCIS Web site and will conduct a random selection of all registrations received on the last day of the registration period ( i.e., “final receipt date”). U.S. employers who receive notification that their registrations have been selected will be eligible to file an H-1B petition on behalf of the prospective H-1B worker named in the selected registration in accordance with the normal filing rules.

While the rule proposes to permit USCIS to keep the registration period open in the event that registrations remain low during the fiscal year, this rule would provide USCIS with the authority to close the registration period before the close of the fiscal year to allow petitioners sufficient time to complete and file their petitions and USCIS sufficient time to receive and process petitions. See proposed 8 CFR 214.2(h)(8)(ii)(A)( 3 ).

In the event that USCIS would receive significantly more registrations than the H-1B cap, USCIS would conduct a random selection of the registrations timely received in a number sufficient to meet the 65,000 and 20,000 caps. Under such random selection process, USCIS would randomly select approximately 15-20% over the regular cap number of 65,000 and approximately 5-10% over the master's cap number of 20,000. The reason for selecting a percentage of registrations over the cap numbers of 65,000 and 20,000 is based on historical approval, denial and rejection rates, and in order to account for a variety of factors, such as: Randomly selected registrants that ultimately decide not to file an H-1B petition; H-1B petitions that are rejected as improperly filed or that are denied based on ineligibility; petitions that are later found revocable; and beneficiaries who ultimately decide not to seek an H-1B visa or are found ineligible for a visa. The random selection process will be conducted via a method approved by the Office of Immigration Statistics and will be similar to the current random, computer-generated selection process for H-1B petitions outlined at 8 CFR 214.2(h)(8)(ii)(B).

After the random selection process is complete, USCIS would be authorized to create a waitlist of remaining registrations. The waitlist of remaining registrations would be based on USCIS statistical estimates of how many more registrations may be needed to fill the caps should the pool of selected registrants unexpectedly fall short of reaching the caps. Waitlisted registrations would be randomly sorted and given a unique number in sequential order. USCIS would notify employers that their registrations have been placed on the waitlist. As H-1B numbers become available, waitlisted registrations would be selected so that employers can file H-1B petitions in accordance with the normal filing rules.

Employers with registrations that are neither randomly selected to file nor placed on the waitlist would receive notification that their registrations were not selected and that they are ineligible to file a petition for the applicable fiscal year.

USCIS proposes to accept only cap-subject H-1B petitions based on selected registrations, and only for the H-1B beneficiary named in the original registration; others will be rejected. See proposed 8 CFR 214.2(h)(8)(ii)(D). No substitution of beneficiaries would be permitted. USCIS recognizes that employer needs often change and potential workers may become unavailable for a variety of reasons. However, USCIS is proposing to limit the filing of petitions to the beneficiary named on the original registration request in an effort to guard against the possibility of abuse from the minority of employers who might otherwise attempt to monopolize petition filing “slots” and create an illegitimate secondary market for H-1B beneficiaries. Furthermore, an employer is prohibited from filing more than one H-1B petition in the same fiscal year on behalf of the same alien if the alien is subject to the cap or is exempt from the cap because of having earned a master's degree or higher from a U.S. institution of higher education. However, if an H-1B petition is denied, on a basis other than fraud or misrepresentation, the employer may file a subsequent H-1B petition on behalf of the same alien in the same fiscal year, provided that the numerical limitation has not been reached or if the filing qualifies as exempt from the numerical limitation. See 8 CFR 214.2(h)(2)(i)(G).

Under the proposed registration and selection process, if an H-1B petition is otherwise approvable, a petitioner likely would be assured, but would not be guaranteed, the availability of an H-1B cap number under the 65,000 or 20,000 cap, whichever is applicable. USCIS notes that, while it takes every conceivable measure to accurately reach and not exceed the cap, and while the registration system is specifically designed to substantially increase the public's assurance that numbers are available for selected registrants, USCIS cannot guarantee every petitioner that an H-1B number will be available for the beneficiary at the time of filing their petition. As USCIS may accept more registrations than the prescribed statutory limit for H-1B petitions (to account for the variety of factors previously referenced, such as drop-outs or unapprovable petitions), there still exists a possibility that the applicable cap may be reached prior to the date that a selected registrant has filed a petition. This is especially true if, for example, a selected registrant does not file its petition until well after the filing period for petitions has begun (April 1st).

Once actual petition filings commence on April 1st of each fiscal year, USCIS monitors petition receipts closely to ensure adherence to the numerical caps. As explained, petitions filed with USCIS are adjudicated in the order they are received and USCIS cannot approve any petition that would cause it knowingly to exceed the statutory caps. However, the over-selection of registrations is necessary due to factors such as selected registrants who do not file Form I-129; petitions that are rejected, denied or withdrawn; approved petitions that are later revoked; and multiple petitions filed for the same individual. By over-selecting registrations, there is a risk of exceeding the statutory caps. Therefore, the challenge is getting close to the numerical cap without exceeding it. In order to stay within the numerical limits of the cap, only 85,000 registrations (65,000 plus 20,000) would have to be selected from the lottery. However, by selecting only 85,000 registrations, USCIS will likely be under the numerical cap for the reasons stated above. Thus, there is a tradeoff between cap compliance certainty (being under 85,001) and cap utilization risk (getting close to the numerical cap). Nevertheless, the actual number of H-1B petition approvals is generally not known until the end of the fiscal year as a result of petitions being revoked, denied or withdrawn throughout the year. Although it is possible to exceed the numerical cap during the fiscal year in December or January, the actual number of petitions approved usually falls under the numerical cap by August or September as a result of ongoing revocations.

USCIS proposes that petitioners would have not less than 60 days from the date of notification of selection (“selection notice”) to properly file a completed H-1B petition for the named beneficiary. USCIS would state the applicable filing deadline in each selection notice. Proposed 8 CFR 214.2(h)(8)(ii)(D)( 2 ). Allowing USCIS to specify the filing period in the selection notice would give USCIS the flexibility to provide filing periods of longer than 60 days if necessary to accommodate processing backlogs.

If the H-1B petition is filed after the filing window closes, USCIS would reject the H-1B petition. In other words, a selected registrant who does not take advantage of the eligibility to file a petition on behalf of the named beneficiary within the timeframe stated on the selection notice would forego eligibility to file and, consequently, any consideration for an available cap number based on that selection notice.

USCIS is proposing to set a minimum 60-day filing window to ensure that the petitioner has adequate time to prepare the H-1B petition package, and, at the same time, that USCIS has adequate time to determine if a sufficient number of petitions have been filed to reach the H-1B annual numerical limitation. The proposed minimum 60-day filing window also would provide USCIS with a minimum time period within which it would be able to determine the number of selected registrants who actually filed a petition and whose petition was approved by USCIS. Calculating the H-1B approval rate during the 60-day filing period would allow USCIS to assess whether there is a need to resort to selecting registrations from the waitlisted pool of registrants, thereby allowing more registrants in the queue to file petitions to reach the cap.

The proposed minimum 60-day filing period in which a selected registrant may opt to file a petition on behalf of the named beneficiary would be read consistently with the existing regulation providing that a petitioner may file no earlier than six months before the date of actual need for the beneficiary's services or training. 8 CFR 214.2 (h)(9)(i)(B). In other words, while the proposed minimum 60-day filing window would provide a cutoff date for filing a petition, selected registrants would still be able to file a petition up to six months prior to the date of stated need. If, for example, an employer's selection notice dated March 31, 2010 contains a 60-day filing period, and the requested start date is October 1, 2010, the petition must be filed no later than May 30, 2010 or USCIS will reject the petition. Another example is if an employer receives the selection notice dated May 1, 2010 with a 60-day filing period, then the petition must be filed no later than June 30, 2010. If the H-1B petition is filed on June 30, 2010, the requested start date may be no later than December 30, 2010, which is six months after the filing date.

The rule also proposes to require that selected registrants submit the selection notice with the actual H-1B petition at the time of filing. See proposed 8 CFR 214.2(h)(8)(ii)(D)( 2 ). The submission of the selection notice is an anti-fraud measure to ensure the integrity of the H-1B cap number allocation system. Further, each selection notice will contain a unique identifying number and have a machine-readable zone that USCIS can use to verify the petitioner and intended beneficiary. Submission of the selection notice facilitates the proper and timely identification of petitioners and beneficiaries selected during the registration process. Failure to submit the selection notice will result in the rejection of the H-1B petition and the return of the filing fees.

This proposed rule also includes modifications to the current H-1B cap management provisions at 8 CFR 214.2(h)(8)(ii)(B). The proposed amendments do not alter the current H-1B cap management process but instead clarify the provision so it better reflects how USCIS conducts the H-1B random selection process. The current cap management process is modified by running the random lottery on the registrations rather than the actual filed petition. The proposed system will not require the petitions to be returned as the lottery will be done prior to filing the actual petitions. This proposed rule also adds a cross reference to the registration process. See proposed 8 CFR 214.2(h)(8)(ii)(B).

This rule will not result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule has been designated as significant under Executive Order 12866. Thus, under the Executive Order, USCIS has prepared an assessment of the benefits and costs anticipated to occur as a result of this rule and made it available for review in the rulemaking docket for this rule at http://www.regulations.gov. The costs and benefits of this rule are summarized as follows.

We estimate the total net savings to USCIS and H-1B petitioners from this rule is $23,611,393 at a three percent discount rate and $19,150,459 at a seven percent discount rate over the next ten years.

Over the next 10 years, this rule will result in a savings to those businesses that file H-1B petitions of $35,826,852 based on a discount rate of three percent, and $29,499,043 based on a discount rate of seven percent. However, the costs imposed on H-1B petitioners as a result of this rule over the next 10 years will be $11,942,284 at the three percent discount rate, and $9,833,014 discounted at seven percent. Thus the net savings resulting from this rule for H-1B petitioners over the next 10 years will be $23,884,568 at three percent and $19,666,029 at seven percent.

In the next 10 years, this rule will result in USCIS saving approximately $3,520,244 when discounted at three percent, and $2,898,492 when discounted at seven percent. The total USCIS costs over the next 10 years as a result of the changes proposed in this rule will be $3,793,419 discounted at three percent and $3,414,062 at the seven percent discount rate. The net cost to USCIS over the 10 years following this rule, discounted at three percent, is $273,175, and discounted at seven percent the costs will be $515,570.

The impacts of this rule on employers wanting to hire an H-1B worker and the government are summarized in the following table.

On January 18, 2011, President Obama issued Executive Order 13563, which outlined a plan to improve regulation and regulatory review (76 FR 3821, January 31, 2011). Executive Order 13563 reaffirms and builds upon governing principles of contemporary regulatory review, including Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), by requiring Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness. The President's plan recognizes that these principles should not only guide the Federal government's approach to new regulation, but to existing ones as well. To that end, Executive Order 13563 requires agencies to review existing significant rules to determine if they are outmoded, ineffective, insufficient, or excessively burdensome.

On February 16, 2011, DOT published a notice of regulatory review (76 FR 8940) that invited public comment on how to effectively implement Executive Order 13563 and set forth a number of issues and questions. Our notice stated that we would hold a public meeting on March 14, 2011. The following section provides the procedures for participating in the meeting and our IdeaScale Web site that can also be used to submit comments to DOT.

1. As stated in our February 16 notice, those who wish to make presentations at the meeting should submit initial comments with sufficient details with their registration to enable DOT to set an agenda and ensure that the appropriate officials are present for the discussions. We hope to be able to accommodate everyone who would like to speak at the meeting, but if there are more interested participants than time available, we will limit participants in order of date and time of registration. When registering to speak, please also estimate the amount of time that you would like to use for your presentation; final times will be allotted to participants based on the time available and the issues raised in their initial comments. Any person wishing to present an oral statement should notify Jennifer Abdul-Wali at the address above by March 7, 2011; any digital presentation materials for the meeting should be submitted to her by March 10, 2011. If available, time will be given for those people attending the meeting in person to speak, even if they had not previously registered to speak.

2. Due to security requirements, all public attendees must register to ensure their access to the building. To register, contact Jennifer Abdul-Wali. Foreign National registrants must provide your full name, title, country of citizenship, date of birth, passport number, and passport expiration date when registering. Because seating space is limited, we may have to limit attendees in order of date and time of registration.

3. Attendees are encouraged to arrive early for processing through security. All participants and attendees must enter through the New Jersey Avenue entrance (West Building—at the corner of New Jersey Avenue and M Street, SE.). Photo identification is required and Foreign National attendees must bring their passports with them. Participants or attendees who have Federal government identification will still need to register to attend. To facilitate security screening, all participants and attendees are encouraged to limit the bags and other items (laptops, cameras, etc. ) they bring into the building. Anyone exiting the building for any reason will be required to re-enter through the security checkpoint at the New Jersey Avenue entrance.

4. DOT does not offer visitor parking; we suggest that attendees consider using alternative means of transportation to the building. DOT Headquarters is served by Metrorail (Navy Yard station), Metrobus, DC Circulator, and taxi service. There are a number of private parking lots near the DOT building, but the DOT cannot guarantee the availability of parking spaces.

5. For information on facilities or services for persons with disabilities, or to request special assistance at the meeting, contact Ms. Abdul-Wali as soon as possible.

6. For those unable to attend the public meeting in person, it will be broadcast via Web streaming (with captioning) and over a listen-only phone line. Registrants will be given the Web URL or phone number on March 10, 2011. Because the number of people who can participate in Web streaming and by phone is limited, we will provide access in order of date and time of registration.

7. We will post an Agenda for the public meeting at http://regs.dot.gov by March 9, 2011.

8. DOT's General Counsel will preside over the public meeting. Senior officials of DOT's operating administrations also will attend this meeting as part of a panel with the General Counsel to receive comments from the public. During the hearing, we may ask questions that will clarify statements or gather more information or data to help us understand the problems or issues raised by commenters.

9. The meeting is designed to solicit public views and gather additional information for our regulatory review. Therefore, the meeting will be conducted in an informal and non-adversarial manner. In developing prepared remarks, participants should leave time during their remarks for questions and discussion by the panel.

10. We plan to make a record of the meeting available to the public; information about how to access the record will be placed in the docket and posted on http://regs.dot.gov.

In order to provide the public with alternative means of providing feedback to DOT in ways that may better suit their needs, we have created a Web site using IdeaScale that will allow submissions to DOT in a less formal manner. This Web site will provide members of the public an opportunity to submit their ideas about our regulatory review, categorized by the DOT Operating Administration that administers the regulation. Participants in this site may discuss one another's ideas and agree/disagree with others. This Web site may be particularly useful for individuals and small entities (including State, local, and Tribal governments) who prefer a less formal method of submitting ideas to DOT. It may also assist participants in refining their suggestions and gathering additional information or data to support those suggestions.

To ensure that ideas are most useful in informing our deliberation and decision process, you should include the citation to the regulation on which you are commenting ( e.g. 49 CFR 1.69), a description of any concerns regarding the regulation ( e.g. it is duplicative, too costly, etc. ), and any supporting information ( e.g., the citation to a duplicative regulation or actual cost or benefit data) that would assist DOT in making a decision. Please also include in your comment whether you found this Web site useful for your purposes, so that we can best plan how to deploy DOT's scarce resources to most effectively reach the public in the future. To go directly to the IdeaScale Web site use the following link: http://dotregreview.ideascale.com/.

The comments received during our review will provide meaningful and significant information for DOT senior officials, including those in the Office of the Secretary and each of DOT's operating administrations. As soon as possible after the public meeting and the close of the comment period, taking account of the number of comments received and the complexity of issues raised, DOT will publish a report providing at least a brief response to the comments we receive, including a description of any further action we intend to take.

Anyone is able to search all comments entered into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476, 04/11/2011) or at http://www.dot.gov/privacy.html.

On July 21, 2010, President Obama signed the Dodd-Frank Act. 3 Title VII of the Dodd-Frank Act  4 amended the CEA  5 to establish a comprehensive new regulatory framework for swaps and security-based swaps. The goal of this legislation was to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of SDs and MSPs; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating robust recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to, among others, all registered entities and intermediaries subject to the Commission's oversight. Among the changes made by the Dodd-Frank Act to the CEA were to include within the CPO definition the operator of a collective investment vehicle that trades swaps, and to include within the CTA definition a person who provides advice concerning swaps. 6

Part 4 of the Commission's regulations sets forth a comprehensive regulatory scheme for the operations and activities of CPOs and CTAs. It includes disclosure, reporting and recordkeeping requirements for registered CPOs and CTAs, registration and compliance exemptions for CPOs and CTAs, and other provisions, including anti-fraud provisions, applicable to CPOs and CTAs regardless of registration status. Many of the Part 4 regulations generally apply to CPOs and CTAs and, thus, they will be applicable to CPOs and CTAs with respect to their swap activities. 7 In other instances, however, the text of certain Part 4 regulations is specific to activities involving futures contracts, commodity options, and off-exchange retail foreign currency transactions, and it does not include, refer to or otherwise take account of swap activities. 8 The Proposal is intended to clarify and ensure that the requirements governing the operations and activities of CPOs and CTAs continue to apply to these intermediaries in the context of their involvement with swap transactions. 9

The Commission is proposing still other rulemakings in response to the Dodd-Frank Act that could affect the Part 4 regulations. 10 The Commission intends to resolve any discrepancies that may arise between any of these other rulemakings and the Proposal in the course of finalizing its rulemaking under the Dodd-Frank Act.

The Part 4 regulations employ the term “commodity interest” throughout. 11 This term currently is defined in Regulation 1.3(yy) to mean:

At various regulations throughout Part 4, the Proposal would insert “swap,” “swap transaction” or a similar term. See the proposed amendments to Regulations 4.23(a)(1), 4.24(g), (h)(1), and (i)(2) for CPOs and Regulations 4.34(g) and 4.34(i)(2) for CTAs. For example, regulation 4.23(a)(1) would be amended to include “swap type and counterparty” in the itemized daily record that a CPO must make and keep with respect to a pool's commodity interest transactions.

At other Part 4 regulations, the Proposal would include the term “swap dealer” among the persons for whom a CPO or CTA must provide information in its Disclosure Document and a CPO must provide information in a pool's periodic Account Statement. See the proposed amendments to Regulations 4.22(a)(3), 4.24(j)(1), (j)(3), ( l )(1), and ( l )(2) for CPOs and Regulations 4.34(j)(1), (j)(3), (k)(1) and (k)(2) for CTAs. For example, Regulations 4.24(j) and 4.34(j) would be amended to include swap dealers in the group of persons as to which conflicts of interest must be disclosed by CPOs and CTAs. Also, the Proposal would include a registered swap dealer among the persons listed in Regulation 4.7(a)(2) that do not have to satisfy a portfolio requirement in order to be a qualified eligible person (QEP), such that a CPO or CTA that has claimed relief under Regulation 4.7 may accept the swap dealer as a pool participant or advisory client without regard to the size of its investment portfolio. This would be consistent with the current treatment of other financial intermediaries registered with the Commission (such as futures commission merchants and retail foreign exchange dealers) as QEPs under Regulation 4.7(a)(2).

Yet other proposed amendments would require a CPO or CTA to make and keep certain books and records generated by the swap transactions in which they engage on behalf of not only their pool participants and clients, but also themselves. See the proposed amendments to Regulations 4.23(a)(7) and (b)(1) for CPOs and Regulations 4.33(a)(6) and (b)(1) for CTAs. The proposed amendments to Regulations 4.23(a)(7) and 4.33(a)(6) would require CPOs and CTAs to retain each acknowledgment of a swap transaction received from a swap dealer. The proposed amendments to Regulations 4.23(b)(1) and 4.33(b)(1) would make clear that if a CPO or CTA was a counterparty to a swap transaction, then it would be subject to the swap data recordkeeping and reporting requirements of Part 45. 13

The Proposal would also amend Regulation 4.30. Currently, this regulation provides:

Finally, the Proposal would delete Regulation 4.32. This regulation deals with trading by a registered CTA on or subject to the rules of a derivatives transaction execution facility (DTEF) for non-institutional numbers. Section 734(a) of the Dodd-Frank Act repeals Section 5a of the CEA, which is the section establishing and providing for the regulation of DTEFs. Accordingly, because subsequent to the effective date of the Dodd-Frank Act  15 Regulation 4.32 will no longer have a statutory basis or purpose, the Proposal would remove and reserve Regulation 4.32.

The Commission requests comment on the foregoing. In addition, the Commission seeks comment on any other amendments it should make to the Part 4 regulations to clarify and ensure that that the requirements governing the operations and activities of CPOs and CTAs continue to apply to these intermediaries in the context of their involvement with swap transactions.

The Regulatory Flexibility Act (“RFA”)  16 requires that agencies, in proposing rules, consider the impact of those rules on small businesses. 17 The Commission previously has established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its rules on such entities in accordance with the RFA. 18 With respect to CPOs, the Commission previously has determined that a CPO is a small entity for the purpose of the RFA if it meets the criteria for an exemption from registration under Regulation 4.13(a)(2). 19 Thus, because the Proposal applies to registered CPOs, the RFA is not applicable to it. As for CTAs, the Commission previously has stated that it would evaluate within the context of a particular rule proposal whether all or some affected CTAs would be considered to be small entities and, if so, the economic impact on them of the particular rule. In this regard, the Commission notes that the Proposal applies to registered CTAs. Moreover, the Proposal would not have a significant economic impact on any CPO or CTA who would be affected thereby, because it would merely bring within the current Part 4 regulatory structure of disclosure, reporting and recordkeeping information with respect to swap activities. It would not impose any additional operative requirements or otherwise direct or confine the activities of CPOs and CTAs. 20 Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the Proposal would not have a significant economic impact on a substantial number of small entities. However, the Commission invites the public to comment on this certification.

The Paperwork Reduction Act of 1995 (PRA)  21 imposes certain requirements on Federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. The Proposal would not, if adopted, require any new collection of information from any entity that would be subject to the affected regulations. Accordingly, for purposes of the PRA, the Chairman, on behalf of the Commission, certifies that the proposed amendments to Part 4, if adopted, would not impose any new reporting or recordkeeping requirements.

Section 15(a) of the CEA  22 requires the Commission to consider the costs and benefits of its actions before issuing a rulemaking under the CEA. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a rule or to determine whether the benefits of the rulemaking outweigh its costs; rather, it simply requires that the Commission “consider” the costs and benefits of its actions. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission may in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest or to effectuate any of the provisions or accomplish any of the purposes of the CEA.

Summary of Proposed Amendments. As is explained above, the proposed amendments to Part 4 would ensure that the Commission's regulations governing the operations and activities of CPOs and CTAs reflect changes made to the CEA by the Dodd-Frank Act by, e.g., including swap dealers among the intermediaries for whom CPOs and CTAs must disclose information to prospective pool participants and clients, and swap transaction confirmations among the books and records that CPOs and CTAs must make and keep.

Costs. With respect to costs, the Commission has determined that the costs of the Proposal would not be significant. This is because the Proposal would simply conform the language of the existing Part 4 regulatory scheme to take into account the changes made to the Commission's overall regulatory scheme as a result of the Dodd-Frank Act. There will be additional disclosure and recordkeeping requirements on CPOs and CTAs as a result of the Proposal. The information required for compliance should be readily available, with minimal administrative burdens, to CPOs and CTAs.

Benefits. With respect to benefits, the Commission has determined that the benefits of the Proposal would be significant. This is because it would enhance the customer protections currently provided under Part 4 by increasing the transparency of swap activities by CPOs and CTAs to their pool participants and clients. This will be accomplished by including information on swap activities in the disclosure, reporting and recordkeeping scheme already existing under Part 4.

Public Comment. The Commission invites public comment on its cost-benefit considerations. Commenters are also invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the Proposal with their comment letters.

For the reasons presented above, the Commission proposes to amend Chapter I of Title 17 of the Code of Federal Regulations as follows:

Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name and address) voluntarily submitted by the commenter.

You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the paragraph above entitled FOR FURTHER INFORMATION CONTACT .

Chapter 154 of title 28, United States Code, makes special procedures available to a State respondent in Federal habeas corpus proceedings involving review of State capital judgments, but only if the Attorney General has certified “that [the] State has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265,” and if “counsel was appointed pursuant to that mechanism, petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.” 28 U.S.C. 2261(b). Section 2265(a)(1) provides that, in order for a State to qualify for the special habeas procedures, the Attorney General must determine that “the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent [capital] prisoners” and that the State “provides standards of competency for the appointment of counsel in [such proceedings].”

Chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public Law 104-132, section 107, 110 Stat. 1214, 1221-26 (1996), but was amended by the USA PATRIOT Improvement and Reauthorization Act of 2005, Public Law 109-177, section 507, 120 Stat. 192, 250-51 (2006). Prior to the 2006 amendment, the determination of a State's eligibility for the special procedures was left to the Federal habeas courts. The 2006 amendment assigned responsibility for chapter 154 certifications to the Attorney General of the United States, subject to de novo review by the Court of Appeals for the District of Columbia Circuit.

Section 2265(b) directs the Attorney General to promulgate regulations to implement the certification procedure. To fulfill this mandate, the Department of Justice published a proposed rule in the Federal Register on June 6, 2007, that proposed adding a new subpart entitled “Certification Process for State Capital Counsel Systems” to 28 CFR part 26. 72 FR 31217. The comment period ended on August 6, 2007. The Department published a notice on August 9, 2007, reopening the comment period, 72 FR 44816, and the reopened comment period ended on September 24, 2007. The final rule establishing the chapter 154 certification procedure was published on December 11, 2008, 73 FR 75327, with an effective date of January 12, 2009.

In January 2009, the United States District Court for the Northern District of California enjoined the Department “from putting into effect the rule * * * without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such period.” Habeas Corpus Resource Ctr. v. U.S. Dep't of Justice, No. 08-2649, 2009 WL 185423, at *10 (Jan. 20, 2009) (preliminary injunction); Habeas Corpus Resource Ctr. v. U.S. Dep't of Justice, No. 08-2649, slip op. at 1 (Jan. 8, 2009) (temporary restraining order). On February 6, 2009, the Department solicited further public comment, with the comment period closing on April 6, 2009. 74 FR 6131.

As the Department reviewed the submitted comments, it considered further the statutory requirements governing the regulatory implementation of the chapter 154 certification procedures. The Attorney General determined that chapter 154 gave him greater discretion in making certification determinations than the December 11, 2008 regulations would have allowed. Therefore, the Department published a notice in the Federal Register on May 25, 2010, proposing to revoke the December 11, 2008 regulations by removing them from the Code of Federal Regulations pending the completion of a new rulemaking process, during which the Department would further consider what standards and procedures were appropriate. 75 FR 29217. The comment period closed on June 24, 2010. On November 23, 2010, the Department published a final rule removing the December 11, 2008 regulations. 75 FR 71353.

The rule proposed today is the result of the Attorney General's reconsideration of the appropriate standards and procedures for chapter 154 certification. Sections 26.20 and 26.21 of the proposed rule are, respectively, a general statement of purpose and a section defining certain terms appearing in chapter 154. These sections are unchanged from the December 11, 2008 final rule. Section 26.22 explains the requirements for certification under chapter 154, relating to appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings in capital cases. It is significantly different from the corresponding section in the December 11, 2008 regulations, particularly with respect to counsel competency and compensation standards. Section 26.23 sets out the procedures for accepting, obtaining public comment on, and deciding State requests for chapter 154 certification. It is similar in substance to the corresponding section of the December 11, 2008 regulations, but in some respects simplified and updated. A section-by-section analysis of the new proposed rule follows.

Section 26.20, which is unchanged from the December 11, 2008 regulations, explains the rule's purpose to implement the certification procedure for chapter 154.

Section 26.21, which is also unchanged from the December 11, 2008 regulations, defines certain terms used in chapter 154 and the regulations.

Under 28 U.S.C. 2265(a), a certification request must be made by “an appropriate State official.” Prior to the 2006 amendments to chapter 154, Federal courts entertaining habeas corpus applications by State prisoners under sentence of death would decide which set of habeas corpus procedures applied—chapter 153 or chapter 154 of title 28—and State attorneys general responsible for such litigation could request determinations that their States had satisfied the requirements for the applicability of chapter 154. The 2006 amendments to chapter 154 were not intended to disable the State attorneys general from their pre-existing role in this area and State attorneys general continue in most instances to be the officials with the capacity and motivation to seek chapter 154 certification for their States. See 73 FR at 75329-30. Section 26.21 of the rule accordingly provides that the appropriate official to seek chapter 154 certification is normally the State attorney general. In those few States, however, where the State attorney general does not have responsibilities relating to Federal habeas corpus litigation, the Chief Executive of the State will be considered the appropriate State official to make a submission on behalf of the State.

Section 26.21 defines “State postconviction proceedings” as “collateral proceedings in State court, regardless of whether the State conducts such proceedings after or concurrently with direct State review.” Collateral review normally takes place following the completion of direct review of the judgment, but some States have special procedures for capital cases in which collateral proceedings and direct review may take place concurrently. Formerly separate provisions for the application of chapter 154 in States with “unitary review” procedures (concurrent collateral and direct review) were replaced by the 2006 amendments with provisions that permit chapter 154 certification for all States under uniform standards, regardless of their timing of collateral review vis-a-vis direct review. Compare 28 U.S.C. 2261(b), 2265 (2006) (as amended by the USA PATRIOT Improvement and Reauthorization Act of 2005), with 28 U.S.C. 2261(b), 2265 (2000) (as enacted by AEDPA); see 152 Cong. Rec. S1620 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that the current provisions simplify the chapter 154 qualification standards, “which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures”).

The definition of “State postconviction proceedings” in the rule reflects the underlying objective of chapter 154 to provide expedited Federal habeas corpus review in capital cases arising in States that have gone beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by extending the appointment of counsel to indigent capital defendants in State collateral proceedings. See 73 FR at 75332-33, 75337 (reviewing relevant legislative and regulatory history). The provisions of chapter 154, as well as its legislative history, reflect the understanding of “postconviction proceedings” as not encompassing all proceedings that occur after conviction (e.g., sentencing proceedings, direct review), but rather as referring to collateral proceedings. See 28 U.S.C. 2261(e) (providing that ineffectiveness or incompetence of counsel during postconviction proceedings in a capital case cannot be a ground for relief in a Federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day time limit for Federal habeas filing under chapter 154 starts to run “after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review” subject to tolling “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition”); 152 Cong. Rec. S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that chapter 154 provides incentives for States to provide counsel in State postconviction proceedings, equated to collateral proceedings); 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (same understanding); see also, e.g., Murray v. Giarratano, 492 U.S. 1 (1989) (equating postconviction and collateral proceedings).

Section 26.22 sets out the requirements for certification that a State must meet to qualify for the application of chapter 154. These are the requirements in 28 U.S.C. 2261(c)-(d) and 2265(a)(1).

Paragraph (a) of § 26.22 sets out the requirements of chapter 154 concerning appointment of counsel that appear in 28 U.S.C. 2261(c)-(d).

Paragraph (b) of § 26.22 explains how States may satisfy the requirement to provide for appointment of “competent counsel” and to provide “standards of competency” for such appointments. 28 U.S.C. 2265(a)(1)(A), (C).

The corresponding portion of the December 11, 2008 regulations construed the reference to appointment of “competent counsel” in section 2265(a)(1)(A) as a cross-reference to counsel meeting the competency standards provided by the State pursuant to section 2265(a)(1)(C). It accordingly treated the definition of such standards as a matter of State discretion, not subject to further review by the Attorney General. See 73 FR at 75331. However, these provisions may also reasonably be construed as permitting the Attorney General to require a threshold of minimum counsel competency, while recognizing substantial State discretion in setting counsel competency standards. See generally Memorandum for the Attorney General from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re: The Scope of the Attorney General's Authority in Certifying Whether a State Has Satisfied the Requirements for Appointment of Competent Post-Conviction Counsel in Chapter 154 of Title 28, United States Code (Dec. 16, 2009), available at http://www.justice.gov/olc/. The latter understanding is supported by cases interpreting chapter 154, see, e.g., Spears v. Stewart, 283 F.3d 992, 1013 (9th Cir. 2002) (recognizing that “Congress * * * intended the states to have substantial discretion to determine the substance of the competency standards” under chapter 154 while still reviewing the adequacy of such standards), and by the original Powell Committee proposal from which many features of chapter 154 ultimately derive, see 135 Cong. Rec. 24692, 24696 (Oct. 16, 1989). This understanding is adopted in § 26.22(b) of the proposed rule.

The specific minimum standards set forth in paragraph (b) are based on judgments by Congress in federal laws concerning adequate capital counsel competency standards and on judicial interpretation of the counsel competency requirements of chapter 154. Three broad options are provided for States to satisfy this requirement—an option involving an experience requirement derived from the standard for appointment of counsel in Federal court proceedings in capital cases (paragraph (b)(1)); an option involving qualification standards set in a manner consistent with relevant portions of the Innocence Protection Act (paragraph (b)(2)); and an option of assuring an appropriate level of proficiency in other ways, such as by requiring some combination of experience and training (paragraph (b)(3)).

As provided in paragraph (b)(1) of § 26.22, a State may satisfy chapter 154's requirement relating to counsel competency by requiring appointment of counsel “who have been admitted to the bar for at least five years and have at least three years of felony litigation experience.” This is based on the standard for appointed counsel in capital case proceedings in Federal court. See 18 U.S.C. 3599(a)-(e). Because Congress has determined that such a counsel competency standard is adequate for capital cases in Federal court proceedings, including postconviction proceedings, see id. § 3599(a)(2), it will also be considered adequate for chapter 154 purposes when such cases are at the stage of State postconviction review.

The counsel competency standards for Federal court proceedings in capital cases under 18 U.S.C. 3599 do not require adherence to the five-year/three-year experience requirement in all cases, but provide that the court “for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant,” with due consideration of the seriousness of the penalty (i.e., capital punishment) and the nature of the litigation. Id. § 3599(d). For example, a court might consider it appropriate to appoint an attorney who is a law professor with expertise in capital punishment law and training in capital postconviction litigation to represent a prisoner under sentence of death, even if the attorney has less than three years of felony litigation experience. The rule in paragraph (b)(1) accordingly does not require the imposition of a five-year/three-year minimum experience requirement in all cases, but allows States that generally impose such a requirement to permit the appointment of other counsel who would qualify for appointment under the standards of 18 U.S.C. 3599, i.e., those whose background, knowledge, or experience would otherwise enable them to properly represent prisoners under sentence of death considering the seriousness of the penalty and the nature of the litigation. This is reflected in the language in paragraph (b)(1) allowing appointment of counsel “who would otherwise qualify for appointment pursuant to the standards for Federal habeas corpus proceedings reviewing State capital cases under 18 U.S.C. 3599.”

Paragraph (b)(2) in § 26.22 sets forth a second option for States to satisfy the counsel competency requirements of chapter 154, specifically, by setting qualification standards for appointment of postconviction capital counsel in a manner consistent with the Innocence Protection Act (IPA), 42 U.S.C. 14163-14163e. The IPA directs the Attorney General to provide grants to States to create or improve “effective system[s] for providing competent legal representation” in capital cases, 42 U.S.C. 14163(c)(1), and provides a definition of “effective system” that is largely based on elements of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. Feb. 2003) (ABA Guidelines), 42 U.S.C. 14163(e). The IPA specifies that such effective systems are to include appointment of capital counsel (i) by a public defender program, (ii) by an entity composed of individuals with demonstrated knowledge and expertise in capital cases (other than current prosecutors) that is established by statute or by the highest State court with criminal case jurisdiction, or (iii) by the court appointing qualified attorneys from a roster maintained by a State or regional selection committee or similar entity pursuant to a pre-existing statutory procedure. 42 U.S.C. 14163(e)(1).

Under the IPA requirements, the appointing authority or an appropriate designated entity must “establish qualifications for attorneys who may be appointed to represent indigents in capital cases.” 42 U.S.C. 14163(e)(2)(A). The IPA does not prescribe the content of these qualifications but assumes that the specifications regarding the nature of the appointment or selection authority and the associated requirements for establishment of qualifications can be relied on to provide appropriate competency standards. Paragraph (b)(2) in § 26.22 follows this legislative judgment in relation to States' satisfaction of the counsel competency requirements of chapter 154. Thus, a State's capital counsel mechanism will be deemed adequate for purposes of chapter 154's counsel competency requirements if it provides for the appointment of counsel in State postconviction proceedings in capital cases in a manner consistent with 42 U.S.C. 14163(e)(1) and establishes standards of competency for such counsel in a manner consistent with 42 U.S.C. 14163(e)(2)(A).

In enacting chapter 154, “Congress did not envision any specific competency standards but, rather, intended the states to have substantial discretion to determine the substance of the competency standards.” Spears, 283 F.3d at 1013 (citing 177 Cong. Rec. S3191, S3220 (daily ed. Mar. 13, 1991)). The options described in paragraphs (b)(1) and (b)(2) in § 26.22 accordingly do not exhaust the means by which States may satisfy chapter 154's requirements concerning counsel competency. Indeed, Congress in formulating chapter 154 rejected a recommendation that States uniformly be required to satisfy the standards for Federal court proceedings in capital cases that currently appear in 18 U.S.C. 3599, see 73 FR at 75331, and in amending chapter 154 in 2006 Congress did not modify chapter 154 to require adherence by States to the IPA standards that had been enacted in 2004 but rather reenacted the more general language of chapter 154 relating to counsel competency.

Consequently, as provided in paragraph (b)(3) in § 26.22, the Attorney General will consider whether a State's counsel competency standards reasonably assure appointment of counsel with a level of proficiency appropriate for State postconviction litigation in capital cases, even if they do not meet the particular criteria set forth in paragraph (b)(1) or (b)(2). As in the courts' consideration of the adequacy of State competency standards prior to the 2006 amendments to chapter 154, no definite formula can be prescribed for this review, and the Attorney General will assess such State mechanisms individually. Measures that will be deemed relevant include standards of experience, knowledge, skills, training, education, or combinations thereof that a State requires attorneys to meet in order to be eligible for appointment in State capital postconviction proceedings. Cf. 18 U.S.C. 3599(d) (allowing appointment of counsel whose background, knowledge, or experience would otherwise enable such counsel to properly represent the defendant); Spears, 283 F.3d at 1012-13 (finding that competency standards involving combination of experience, proficiency, and education were adequate under chapter 154); ABA Guidelines §§ 5.1.B.2, 8.1.B, pp. 35, 46 (recommending skill and training requirements for capital counsel). Also, the rule in paragraphs (b)(1) and (b)(2) of § 26.22 identifies particular approaches that will be considered adequate, specifically, those of the Federal capital counsel statute (18 U.S.C. 3599) and of the Innocence Protection Act (42 U.S.C. 14163(e)(1), (2)(A)). These approaches accordingly may serve as benchmarks, and States' adoption of competency requirements that are similar or that are likely to result in even higher levels of proficiency will weigh in favor of a finding of adequacy for purposes of chapter 154. As indicated in the prefatory language in paragraph (b) of § 26.22, State capital counsel mechanisms will be deemed adequate in relation to counsel competency if they meet or exceed the standards identified in the paragraph. States will not be penalized for going beyond the minimum required by the rule. Thus, for example, in relation to paragraph (b)(1), State competency standards will be considered sufficient if they require, e.g., five years of felony litigation experience rather than three, uniform satisfaction of the five-year/three-year experience requirement rather than allowing some exception as in 18 U.S.C. 3599(d), or training requirements for appointment in addition to the specified experience requirement.

The rule does not require that all counsel in a State qualify under the same standard. Alternative standards may be used so long as the State mechanism requires that all counsel satisfy some standard qualifying under paragraph (b). Cf. 18 U.S.C. 3599(d) (allowing exceptions to categorical experience requirement); Spears, 283 F.3d at 1013 (finding that alternative standards are allowed under chapter 154). Hence, for example, a State system could pass muster by requiring that appointed counsel either satisfy an experience standard sufficient under paragraph (b)(1) or satisfy an alternative standard sufficient under paragraph (b)(3) involving more limited experience but an additional training requirement.

Paragraph (c) of § 26.22 explains how a State may satisfy the requirement that it have established a mechanism for the compensation of appointed counsel. 28 U.S.C. 2265(a)(1)(A). The corresponding portion of the December 11, 2008 regulations assumed that levels of compensation for purposes of chapter 154 were a matter of State discretion, not subject to review by the Attorney General, because the statute refers simply to “compensation” and imposes no further requirement that the authorized compensation be “adequate” or “reasonable.” See 73 FR at 75331-32. However, the broader statutory context is the requirement that the State establish a mechanism “for the appointment [and] compensation * * * of competent counsel.” 28 U.S.C. 2265(a)(1)(A). This requirement reflects a determination by Congress that reliance on unpaid volunteers to represent indigent prisoners under sentence of death is insufficient, and a State mechanism affording inadequate compensation could similarly fall short in ensuring the availability of competent counsel for appointment. Hence, when a State relies on a compensation incentive to secure competent counsel, chapter 154 is reasonably construed to permit the Attorney General to review the adequacy of authorized compensation. This understanding is adopted in § 26.22(c) of the proposed rule.

Paragraph (c)(1) in § 26.22 describes a number of possible compensation standards that will be considered adequate for purposes of chapter 154, generally using as benchmarks the authorizations for compensation of capital counsel that have been deemed adequate in other Acts of Congress.

The first option, appearing in paragraph (c)(1)(A), is compensation comparable to that authorized by Congress for representation in Federal habeas corpus proceedings reviewing State capital cases. 18 U.S.C. 3599(g)(1). This level of compensation should similarly be adequate to ensure the availability of competent counsel for appointment in such cases at the stage of State postconviction review.

The second option, appearing in paragraph (c)(1)(B), is compensation comparable to that of retained counsel who meet competency standards sufficient under paragraph (b). The Innocence Protection Act and the ABA Guidelines similarly endorse reliance on market rates for legal representation to provide adequate compensation for appointed capital counsel. See 42 U.S.C. 14163(e)(2)(F)(ii)(II); ABA Guidelines § 9.1.B.3, p. 49. Compensation sufficient to induce competent attorneys to carry out such representation for hire should likewise be sufficient to attract competent attorneys to accept appointments for such representation.

The third option, appearing in paragraph (c)(1)(C), is compensation comparable to that of appointed counsel in State appellate or trial proceedings in capital cases. Cf. 18 U.S.C. 3599(g)(1) (authorization for compensation of capital counsel not differentiating between compensation at different stages of representation). The compensation afforded at the stages of trial and appeal must be sufficient to secure competent attorneys to provide representation because effective legal representation of indigents is constitutionally required at those stages. Comparable compensation should accordingly be sufficient for that purpose at the postconviction stage.

The fourth option, appearing in paragraph (c)(1)(D), is compensation comparable to that of attorneys representing the State in State postconviction proceedings in capital cases. This option also follows the Innocence Protection Act and the ABA Guidelines, which provide that capital counsel employed by defender organizations should be compensated on a salary scale commensurate with the salary scale of prosecutors in the jurisdiction. 42 U.S.C. 14163(e)(2)(F)(ii)(I); ABA Guidelines § 9.1.B.2, p. 49. The rule allows this approach for compensation of both public defenders and private counsel, but recognizes that private defense counsel may have to pay from their own pockets overhead expenses that publicly employed prosecutors do not bear. The rule accordingly specifies that, if paragraph (c)(1)(D) is relied on to justify the level of compensation authorized for private counsel, the compensation standard should take account of overhead costs (if any) that are not otherwise payable as reasonable litigation expenses. Cf. Baker v. Corcoran, 220 F.3d 276, 285-86 (4th Cir. 2000) (finding that compensation resulting in substantial losses to appointed counsel was inadequate under chapter 154).

In comparing a State's compensation standards to the benchmarks identified in paragraph (c)(1), both hourly rates and overall limits on compensation will be taken into account. For example, under paragraph (c)(1)(C), suppose that State law authorizes the same hourly rate for compensation of appointed capital counsel at the appellate stage and in postconviction proceedings, but it specially imposes a low overall limit on compensable hours at the postconviction stage. The compensation authorized at the respective stages may then not be comparable in any realistic sense, and the objective of ensuring the availability of competent counsel for postconviction representation may not be realized, because counsel who accepted such representation would effectively be required to function as uncompensated volunteers to the extent they needed to work beyond the maximum number of compensable hours. This does not mean that State compensation provisions will be deemed inadequate if they specially prescribe presumptive limits on overall compensation at the postconviction stage, but comparability to the paragraph (c)(1) benchmarks may then depend on whether the State provides means for authorizing compensation beyond the presumptive maximum where necessary. Cf. Spears, 283 F.3d at 1015 (approving a presumptive 200-hour limit under chapter 154 where compensation was available for work beyond that limit if reasonable); Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996), vacated in part on reh'g on other grounds, 105 F.3d (5th Cir. 1997) (overall $7500 limit on compensation was not facially inadequate under chapter 154 and was not shown inadequate in the particular case).

As with the counsel competency standards of paragraph (b), the counsel compensation standards of paragraph (c)(1) provide only a floor that States are free to exceed, and not all counsel must be compensated in conformity with a single standard. Rather, a State may adopt alternative standards, each comparable to or exceeding some benchmark identified in paragraph (c)(1), and provide for compensation of different counsel or classes thereof in conformity with different standards. For example, a State might provide for representation of some indigent capital defendants in postconviction proceedings by appointed private counsel and some by public defender personnel, compensate the private counsel in conformity with paragraph (c)(1)(C), and compensate the public defender counsel in conformity with paragraph (c)(1)(D).

The rule recognizes that the compensation options set out in paragraph (c)(1) of § 26.22 are not necessarily the only means by which a State may provide competent counsel. State compensation provisions for capital counsel have been deemed adequate for purposes of chapter 154 and other Federal laws independent of any comparison to the benchmarks in paragraph (c)(1). See 42 U.S.C. 14163(e)(2)(F)(i) (State may compensate under qualifying statutory procedure predating the Innocence Protection Act); Spears, 283 F.3d at 1015 (State could compensate at “a rate of up to $100 an hour, a rate that neither Petitioner nor amici argue was unreasonable”). Also, a State may secure representation for indigent capital defendants in postconviction proceedings by means not dependent on any special financial incentive for accepting appointments, such as by providing salaried public defender personnel to carry out such assignments as part of their duties. Accordingly, under paragraph (c)(2) in § 26.22, capital counsel mechanisms involving compensation provisions that do not satisfy paragraph (c)(1) are approvable if they are otherwise reasonably designed to ensure the availability of competent counsel.

Paragraph (d) of § 26.22 incorporates the requirement in 28 U.S.C. 2265(a)(1)(A) to provide for the payment of reasonable litigation expenses. An inflexible cap on reimbursable litigation expenses in capital postconviction proceedings could contravene this requirement by foreclosing the payment of costs incurred by counsel, even if determined by the court to be reasonably necessary. However, the requirement does not foreclose a presumptive limit if the State provides means for authorizing payment of litigation expenses beyond the limit where necessary. Cf. 18 U.S.C. 3599(f), (g)(2) (establishing presumptive $7500 limit on payment for litigation expenses in federal court proceedings in capital cases, with authority for chief judge or delegee to approve higher amounts); Mata, 99 F.3d at 1266 (concluding that overall $2500 limit on payment of litigation expenses was not facially inadequate under chapter 154 and was not shown to be inadequate in the particular case).

Section 26.23 in the rule sets out the mechanics of the certification process for States seeking to opt in to chapter 154.

Paragraph (a) provides that an appropriate State official may request in writing that the Attorney General determine whether the State meets the requirements for chapter 154 certification. Paragraph (b) provides that the Attorney General will make the request available on the Internet and solicit public comment on the request by publishing a notice in the Federal Register. It requires Internet availability because State requests for certification may include supporting materials not readily reproducible or viewable in the Federal Register , such as copies of State statutes, rules, and judicial decisions bearing on the State's satisfaction of chapter 154's requirements for certification.

As provided in paragraph (c), the Attorney General will review the State's request, including consideration of timely public comments received in response to the Federal Register notice. The Attorney General will decide whether the State has satisfied the requirements for chapter 154 certification and will publish the certification in the Federal Register if certification is granted. The certification will include a determination of the date the capital counsel mechanism qualifying the State for certification was established, as that date is the effective date of the certification. 28 U.S.C. 2265(a)(2).

Paragraph (d) addresses the effect of changes or alleged changes in a State's capital counsel mechanism after that mechanism has been certified by the Attorney General. The paragraph first addresses situations involving changes or alleged changes in a State's capital counsel mechanism prior to State postconviction proceedings in a capital case. Chapter 154's expedited Federal habeas corpus procedures are available only in cases in which both of two statutory conditions are met: (i) The State's capital counsel mechanism has been certified by the Attorney General, 28 U.S.C. 2261(b)(1), and (ii) “counsel was appointed pursuant to that mechanism”—i.e., the mechanism certified by the Attorney General—unless the petitioner “validly waived counsel * * * [or] retained counsel * * * or * * * was found not to be indigent,” 28 U.S.C. 2261(b)(2). The first sentence of paragraph (d) therefore notes that certification by the Attorney General under chapter 154 reflects the Attorney General's determination that the State capital counsel mechanism examined in the Attorney General's review satisfies chapter 154's requirements. If a State later discontinues that mechanism before counsel is appointed in a given State postconviction proceeding, then counsel in that case will not have been “appointed pursuant to” the mechanism that was approved by the Attorney General and chapter 154 would accordingly be inapplicable. Similarly, if a State later changes or is alleged to have changed its capital counsel mechanism, then chapter 154 may lead to litigation in Federal habeas courts, with those courts responsible for deciding whether the State has actually changed its mechanism and, if so, whether the change means that counsel (even if appointed) was appointed pursuant to what is in effect a new and uncertified mechanism, rather than the mechanism certified by the Attorney General.

To avoid such litigation, the second sentence of paragraph (d) provides that a State may seek a new certification by the Attorney General if it changes or is alleged to have changed a previously certified capital counsel mechanism. If a State wishes to improve on a certified capital counsel mechanism, then certification by the Attorney General of the new or revised mechanism will allow the State to avoid Federal habeas court litigation over whether chapter 154 is applicable to cases involving appointments made pursuant to that mechanism. Similarly, if legal questions are raised about the continued applicability of chapter 154 based on changes or alleged changes in a certified capital counsel mechanism, a State may seek a new certification by the Attorney General that its current mechanism satisfies chapter 154's requirements, ensuring the continued applicability of chapter 154's expedited Federal habeas corpus procedures. By seeking a new certification of a new or revised capital counsel mechanism, a State may ensure that it is the Attorney General, subject to review by the D.C. Circuit Court of Appeals, who determines whether its capital counsel mechanism is in present compliance with chapter 154's requirements, see 28 U.S.C. 2261(b)(1), 2265(c)(2), and avoid litigation over that matter in the Federal habeas courts.

The final sentence in paragraph (d) states that subsequent changes in a State's capital counsel mechanism do not affect the applicability of chapter 154 in cases in which a mechanism certified by the Attorney General existed throughout State postconviction proceedings in the case. For example, suppose that the Attorney General certifies a State's capital counsel mechanism in 2012, the State postconviction proceedings in a capital case are carried out in 2013 and 2014 and counsel is appointed in those proceedings pursuant to the certified mechanism, and Federal habeas corpus proceedings in the case commence in 2015. Suppose further that the State makes some change in 2015 to its counsel competency or compensation standards. Because a certified capital counsel mechanism would have been in place throughout State postconviction review, the prerequisites for expedited Federal habeas corpus review under chapter 154 would be satisfied, see 28 U.S.C. 2261(b). That result would not be affected by later changes in the State's postconviction capital counsel mechanism.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and, accordingly, this rule has been reviewed by the Office of Management and Budget. The determination that this is a significant regulatory action, however, does not reflect a conclusion that it is “likely to result in a rule that may * * * [h]ave an annual effect on the economy of $100 million or more” or other adverse effects as described in section 3(f)(1) of the Executive Order. This rule will have no economic effect unless particular States (i) decide, in their discretion, that any costs entailed in meeting the chapter 154 capital counsel requirements are offset or justified by resulting cost reductions or other benefits to the State under chapter 154, and (ii) accordingly undertake to make any changes needed in their capital counsel systems to meet the chapter 154 requirements and apply to the Attorney General for certification.

If States decide to apply for chapter 154 certification, their resulting costs will mainly depend on (i) the number of capital cases these States litigate in State postconviction proceedings, and (ii) the incremental difference (if any) between their current per-case capital litigation costs and the corresponding costs under a chapter 154-compliant system. Regarding the number of capital cases, at the end of 2009, 36 states held 3,118 prisoners under sentence of death. See Bureau of Justice Statistics, Office Justice Programs, U.S. Department of Justice, Capital Punishment, 2009—Statistical Tables at 8, table 4 (Dec. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf. Regarding the incremental costs of satisfying the chapter 154 standards, States accounting for the great majority of capital cases in the United States already provide for appointment of counsel in State postconviction proceedings. These States may still fall short of satisfying the chapter 154 standards relating to payment of litigation expenses or compensation of counsel. However, the costs necessary to correct such deficiencies would be limited to the difference between existing caps and any higher amounts necessary to defray reasonable litigation expenses and to secure competent attorneys for appointment, and this rule affords States a variety of options that may minimize any resulting increase in costs.

Even assuming that all States will upgrade their postconviction capital counsel mechanisms to the extent necessary to satisfy the proposed rule, and that the number of capital cases pending at any time in State postconviction proceedings is as high as 2,000, the total cost for the States could not reach $100 million annually unless the average increase in litigation costs were $50,000 each year for each case in State postconviction proceedings. There is no reason to believe that costs would increase to that degree, and any increased costs at that stage would be subject to offset by savings resulting from chapter 154's expedited procedures in subsequent Federal habeas corpus review. See 28 U.S.C. 2262, 2264, 2266. Moreover, because the States would more fully defray the costs of representing indigent capital defendants in State postconviction proceedings, there would be less need for representation by private counsel on a pro bono basis, often arranged through postconviction capital defense projects. Thus, State costs also would be offset by reduced costs for private entities and individuals who otherwise would provide representation, reducing the overall economic effect. For the foregoing reasons, it is not expected that this rule will or may have an annual effect on the economy of $100 million or more.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. It provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the United States Code. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule provides only a framework for those States that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the United States Code.

This rule will not result in aggregate expenditures by state, local and tribal governments or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Accordingly, for the reasons set forth in the preamble, part 26 of chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows:

I. General Information A. Does this action apply to me?

Entities regulated by this action are public water systems (PWSs). All large community and non-transient non-community water systems serving more than 10,000 people would be required to monitor. A community water system (CWS) means a PWS which has at least 15 service connections used by year-round residents or regularly serves an average of at least 25 year-round residents. A non-transient non-community water system (NTNCWS) means a PWS that is not a CWS and that regularly serves at least 25 of the same people over six months per year. Only a nationally representative sample of community and non-transient non-community systems serving 10,000 or fewer people would be required to monitor for chemical analytes (see USEPA, 2001 for a description of the statistical approach for the nationally representative sample). Transient non-community systems ( i.e., systems that do not regularly serve at least 25 of the same people over six months per year) would not be required to monitor for the chemical analytes. However, transient ground water systems serving 1,000 or fewer would be subject to possible selection for virus monitoring. If selected, these systems would be required to permit EPA to sample and analyze for List 3 contaminants and pathogen indicators. EPA would pay for all sampling and analysis costs associated with virus monitoring at these small systems. States, Territories, and Tribes with primary enforcement responsibility (primacy) to administer the regulatory program for PWSs under the Safe Drinking Water Act (SDWA) may participate in the implementation of UCMR 3 through Partnership Agreements (PAs) (see discussion of PAs in section III.G. of today's action: “What Is the States' Role in the UCMR Program?”). These primacy agencies may choose to conduct analyses to measure for contaminants in water samples collected for the UCMR 3; however, the PWS remains responsible for compliance. Regulated categories and entities are identified in the following table.

This table is not exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware may potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the definition of PWS in § 141.2 of Title 40 of the Code of Federal Regulations, and applicability criteria in § 141.40(a)(1) and (2) of today's proposed action. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This document is available for download at: http://www.regulations.gov. For other related information, see preceding discussion on docket.

Section 1445(a)(2) of the Safe Drinking Water Act (SDWA), as amended in 1996, requires that once every five years, beginning in August 1999, the United States Environmental Protection Agency (EPA) issue a new list of no more than 30 unregulated contaminants to be monitored by public water systems (PWSs). It also requires that EPA enter the monitoring data into the Agency's National Drinking Water Contaminant Occurrence Database (NCOD). EPA's Unregulated Contaminant Monitoring Regulation (UCMR) program must ensure that only a national representative sample of PWSs serving 10,000 or fewer people would be required to monitor. EPA must vary the frequency and schedule for monitoring based on the number of persons served, the source of supply, and the contaminants likely to be found.

Today's notice proposes 30 contaminants for monitoring during the third five-year cycle, referred to as “UCMR 3.” These contaminants include: 28 chemicals using six analytical methods and/or four equivalent consensus organization-developed methods, and two viruses using one analytical method. EPA has developed a proposed contaminant list (Exhibit 1) and sampling design for UCMR 3 (2012-2016) with input from both stakeholders and an EPA-State working group.

This is a summary of Commission's document, Report No. 2925, released February 7, 2011. The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). The Commission will not send a copy of this Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Notice does not have an impact on any rules of particular applicability.

This document is published pursuant to 47 CFR 1.429(e). See 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)).

Subject: In the Matter of Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations (Pacific Junction, Iowa) (MB Docket No. 10-108).

Number of Petitions Filed: 1.

Background

The monkfish fishery is jointly managed by the New England and Mid-Atlantic Fishery Management Councils (Councils), with the New England Fishery Management Council (NEFMC) having the administrative lead. The fishery extends from Maine to North Carolina, and is divided into two management units: The Northern Fishery Management Area (NFMA) and the Southern Fishery Management Area (SFMA).

The Councils developed Amendment 5 with the primary goal of bringing the Monkfish FMP into compliance with the requirements of the reauthorized Magnuson-Stevens Act. The 2006 reauthorization of the Magnuson-Stevens Act contains several new requirements, including the requirement that all fishery management plans contain ACLs to prevent overfishing, and measures to ensure accountability.

Amendment 5 was also developed to bring the Monkfish FMP into compliance with recently revised National Standard 1 (NS1) Guidelines (74 FR 3178; January 16, 2009), which not only established a process for setting ACLs and guidance for establishing AMs, but also provided updated guidelines for establishing reference points and control rules ( i.e., maximum sustainable yield (MSY), optimum yield (OY), overfishing limits (OFL), acceptable biological catch (ABC), ACLs, and annual catch targets (ACTs)), and clarifies the relationships among them. Amendment 5 would establish biological and management reference points to be consistent with NS1 guidelines utilizing recent scientific information from the 2007 Northeast Data Poor Stocks Working Group (DPWG) assessment.

New biological reference points were developed as part of the 2007 assessment, based on a revised yield-per-recruit analysis (using a revised value of the natural mortality rate) and results of a length-tuned model that incorporates multiple survey indices and catch data. However, the 2007 assessment results were accompanied by substantial uncertainty and are, therefore, viewed with caution. Reservations highlighted in the 2007 DPWG assessment report include: (1) Input uncertainties (under-reported landings and unknown discards of monkfish during the 1980s and incomplete understanding of key biological parameters such as age and growth, longevity, natural mortality, and stock structure); (2) the shorter assessment time frame of data used (1980-2006) than was used in previous assessments (1963-2006); and (3) the relatively recent development of the assessment model. More specifically, the assessment hinges on assumptions regarding growth, longevity, and natural mortality of monkfish, all of which are poorly known. In addition, commercial catches prior to 1993 are not well characterized. Framework Adjustment 5 (Framework 5), implemented on May 1, 2008 (73 FR 22831, April 28, 2008), adopted the revised reference points recommended by the DPWG. Based upon these revised biomass reference points, Framework 5 determined that both monkfish stocks were no longer overfished, and are considered rebuilt. The Monkfish Assessment Summary Report for 2007 can be found at http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0713/.

A more recent assessment of the monkfish resource was conducted during the first half of 2010 by the 50th Stock Assessment Review Committee (SARC 50). The full report for this assessment was released in August 2010 and can be found at http://www.nefsc.noaa.gov/publications/crd/crd1017/. The SARC 50 assessment concluded that both stocks are above their respective current biomass thresholds, as well as new biomass thresholds recommended by the assessment, indicating that both stocks are not overfished. Furthermore, the current estimated fishing mortality rate for each stock is below their respective fishing mortality thresholds. Thus, overfishing is not occurring on either stock. Given the timing of SARC 50 and when the Councils took final action on Amendment 5 in June 2010, this action does not update the biomass reference points in the FMP. Because SARC 50 shows such significant changes in the fishery in the NFMA that revisions to management measures may be required, NMFS is considering disapproving the specification of the NFMA ACT on the ground that it is not consistent with the most recent scientific advice. The NEFMC has initiated a framework adjustment to the Monkfish FMP (Framework 7), to be implemented immediately following Amendment 5, for this purpose and to adjust the ACT for the NFMA to be consistent with the most recent scientific advice. Further information on how Framework 7 relates to this amendment is provided under proposed measure 3, “Proactive AM.”

Similar to the 2007 assessment, the 2010 assessment panel expressed serious concerns regarding the high levels of uncertainty in the assessment. The Monkfish Assessment Summary Report for 2010 states, “The assessment results continue to be uncertain due to cumulative effects of under-reported landings, unknown discards during the 1980s, uncertainty in survey indices, and incomplete understanding of key biological parameters such as age and growth, longevity, natural mortality and stock structure contributing to retrospective patterns primarily in the northern management area.” Unlike the 2007 assessment, the 2010 assessment was able to conduct projections to evaluate stock trends based on anticipated fishing levels. However, these projections are also considered highly uncertain, since they are based on the outputs of the assessment model. Despite this uncertainty, the projections indicate that the NFMA is more vulnerable to overfishing or becoming overfished during 2011-2016 if total catches approach the proposed ABC, while the SFMA is less vulnerable.

Amendment 5 also proposes measures intended to promote efficiency and reduce waste in the monkfish fishery. First, a measure is being proposed that would minimize regulatory discards resulting from monkfish trip limit overages by allowing vessels to land an additional trip limit (1 day's worth) and have their DAS usage for that trip adjusted to account for the overage. Second, a measure is being proposed that would allow the landing of monkfish heads separate from the body by adding a new conversion factor and authorized landing form to the FMP. Lastly, a measure is being proposed in Amendment 5 that would enable changes to be made to the Monkfish RSA Program through a framework adjustment versus an FMP amendment.

The biological and management reference points currently in the Monkfish FMP are used to determine if overfishing is occurring on either stock (F threshold ), if either stock is overfished (B threshold ), or if either stock is rebuilt (B target ). However, these reference points alone are not sufficient to comply with the Magnuson-Stevens Act and the recently updated NS1 guidelines. As a result, Amendment 5 proposes to establish control rules to specify MSY, OY, OFL, and ABC for each monkfish stock, as described in the following paragraphs.

MSY is defined under the Magnuson-Stevens Act as “the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics ( e.g., gear selectivity), and the distribution of catch among fleets.” The overfishing threshold (F threshold ) for monkfish is defined under the Monkfish FMP as equivalent to F msy or its proxy. Further, the target biomass reference point (B target ) is defined under the Monkfish FMP as B msy or its proxy. Amendment 5 proposes that the MSY control rule be expressed as the product of these two reference points (MSY = F threshold × B target ). Based on the 2007 assessment, MSY is calculated to be 17,053 mt for the NFMA and 25,487 mt for the SFMA.

OY is defined under the Magnuson-Stevens Act as “the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities taking into account the protection of marine ecosystems; that is prescribed on the basis of MSY from the fishery, as reduced by any relevant economic, social, or ecological factor; and in the case of an overfished fishery, that provides for the rebuilding to a level consistent with producing the MSY in such a fishery.” The NS1 guidelines further state that OY should be set at a level that prevents overfishing and rebuilds overfished stocks. Consistent with the NS1 guidelines, the Councils are proposing in Amendment 5 to set OY equivalent to the ACT, which is a proactive AM further described under measure 3 below. Setting OY equal to the ACT would provide the greatest benefit to the Nation since this value represents the maximum yield from the fishery while preventing overfishing, after taking into account scientific uncertainty in the OFL in setting ABC, and management uncertainty in setting measures that will not exceed the ABC.

OFL is defined under the Magnuson-Stevens Act as “the annual amount of catch that corresponds to the estimate of maximum fishing mortality threshold (MFMT) applied to a stock or stock complex's abundance and is expressed in terms of numbers or weight of fish. The OFL is an estimate of the catch level above which overfishing is occurring.” Consistent with this definition, Amendment 5 proposes that OFL be expressed as the product of F threshold and current exploitable biomass (B current ) (OFL = F threshold × B current ).

ABC is defined under the Magnuson-Stevens Act National Standard 1 Guidelines as “a level of stock or stock complex's annual catch that accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty, and should be specified based on the ABC control rule.” The revised NS1 guidelines further state that “ABC may not exceed OFL,” and that “the determination of ABC should be based, when possible, on the probability that an actual catch equal to a stock's ABC would result in overfishing.” These guidelines also require that the Council's ABC control rule be based on scientific advice provided by its Scientific and Statistical Committee (SSC), and that the SSC recommend the ABC to the Council.

The NEFMC's SSC, at its March 17, 2009, meeting, endorsed the proxy reference points for B msy and F msy , as well as the estimates of stock size from the 2007 DPWG. However, in its March 30, 2009, report to the NEFMC, the SSC noted “considerable uncertainties in the assessment model preclude its use to determine probability of exceeding the projected Overfishing Level of catch.” As a result, the SSC recommended an interim ABC “based on the product of the average exploitation rate during the recent period of stable or increasing trend in biomass in both management units and the most recent estimate or index of exploitable biomass.” The SSC recommended this data-poor default method for determining an interim ABC because it produces catch advice that is not directly based on OFL and its uncertainty. However, the SSC noted that “the method of determining ABC should be considered an interim proxy until Overfishing Level of Catch and its uncertainty can be projected.” Thus, as required by the NS1 guidelines, the Councils are recommending in Amendment 5 an ABC that is consistent with the interim ABC approach recommended by the SSC.

The Monkfish Plan Development Team (PDT) reviewed the results of the statistical catch at length (SCALE) model from the 2007 assessment and determined that the periods for stable or increasing biomass were 1999-2006 for the NFMA, and 2000-2006 for the SFMA. Using the average exploitation rates for these time periods, and the most recent estimate of exploitable biomass (2006), the PDT calculated an ABC of 17,485 mt for the NFMA, and 13,326 mt for the SFMA. This would result in a buffer between the ABC and the OFL of 23 percent (5,234 mt) for the NFMA, and 53 percent (14,930 mt) for the SFMA.

The Magnuson-Stevens Act, at section 303(a)(15), requires that any FMP establish a mechanism for specifying ACLs at a level that prevents overfishing, and also include measures that ensure accountability. Section 302(h)(6) of the Magnuson-Stevens Act and the NS1 guidelines further state that the ACL for a given stock or stock complex cannot exceed the ABC as recommended by the SSC. NS1 further notes that the ACL serves as the basis for invoking AMs, and that ACLs, in coordination with AMs, must prevent overfishing. Based on the requirements of the Magnuson-Stevens Act and the NS1 guidelines with respect to ACLs and AMs, Amendment 5 proposes to establish ACLs that are equal to the respective ABC for each management area, since scientific uncertainty has been accounted for in establishing these ABCs, and management uncertainty will be accounted for in the establishment of ACTs for each management area as a proactive AM. Thus, the Councils determined that there was no technical basis for setting the ACLs for each management area below their respective ABC. In its March 30, 2009, report, the SSC supported the Councils' ACL recommendation and noted that “the magnitude of recent catch has low risk of exceeding the OFL or the proposed interim ABC” since in 2006, total catch was only 32 percent of the proposed OFL for the NFMA, and 34 percent of the proposed OFL for the SFMA; and total catch in 2007 was estimated by the PDT to be 24 percent of the proposed OFL for the NFMA, and 31 percent of the proposed OFL for the SFMA.

The NS1 guidelines describe AMs as management controls aimed at preventing the ACL from being exceeded, and to correct or mitigate overages of the ACL. Amendment 5 proposes both forms of AMs for the monkfish fishery: A proactive AM in the form of ACTs for each management area, and a reactive AM in the form of an ACL overage provision. This section describes the proactive AM.

The proactive AM being proposed in Amendment 5 would establish ACTs for each management area. The purpose of ACTs is to account for management uncertainty, as noted in the NS1 guidelines. Rather than establishing ACTs based on a given formula or control rule, the Councils developed a range of ACT options for each management area that were based upon fixed increases from current total allowable landing (TAL) levels plus discards. This range was narrowed down to two ACT options for each management area, all of which would result in increases over current TALs. These options are presented in Table 1. The discard rates for each management area used in the calculation of these ACT options were 7.5 percent for the NFMA and 29 percent for the SFMA.

The Councils selected Option 2 for each management area as their preferred alternatives. Thus, Amendment 5 proposes an ACT of 10,750 mt for the NFMA, and 11,513 mt for the SFMA. However, based on the results of SARC 50, the SSC recently revisited their previous ABC recommendation at an August 24, 2010, meeting. After much discussion concerning the uncertainty with the assessment and alternate methods for calculating ABC to account for this uncertainty, the SSC agreed to maintain the existing interim ABC approach it previously recommended. The recalculated ABCs that incorporate the results of SARC 50 would be 7,592 mt for the NFMA, and 12,316 mt for the SFMA. This results in a revised ABC for the NFMA that is 3,158 mt lower than the NFMA ACT being recommended by the Councils in Amendment 5, creating an inconsistency with the recalculated ABC. Conversely, the recalculated ABC for the SFMA is 803 mt higher than the Council's recommended ACT for that area. Although this reduces the buffer between the ACT and the ABC/ACL for the SFMA to only 6.5 percent, it does not create an inconsistency as is found in the NFMA. In response to the SSC's most recent advice, and the recalculated ABCs for both management areas based on the results of SARC 50, the NEFMC initiated Framework Adjustment 7 (Framework 7) at its September 28-30, 2010, meeting to revise the ACT for the NFMA to be consistent with the most recent scientific advice, and to incorporate the results of SARC 50 into the FMP. As a result, NMFS is considering approving the establishment of a proactive AM in the form of ACTs for both management areas, but disapproving the specification of the NFMA ACT in Amendment 5 on the grounds that it is not consistent with the most recent scientific advice. This would leave the current measures for the NFMA in place until they are superseded by a revised ACT and specification of DAS and trip limits under Framework 7, which is expected to be implemented during the summer of 2011.

The ACTs being considered in Framework 7 are equivalent or slightly higher than the current TAL for the NFMA. Additionally, NFMA landings have been well below the TAL for the past 2 years (29 percent in 2008, and 33 percent in 2009). Thus, NMFS does not expect delaying action on the establishment of an ACT for the NFMA would result in landings exceeding the ACTs being considered in Framework 7 during the 2011 fishing year, which begins May 1, 2011.

If this rule is implemented by the start of the 2011 fishing year, any monkfish landings that occur between May 1, 2011, and the time the final rule is effective would accrue against the ACT for that year and be used to trigger AMs.

As noted above, Amendment 5 proposes both forms of AMs referenced in the NS1 guidelines for the monkfish fishery. With respect to AMs for when an ACL is exceeded, the NS1 guidelines state, “On an annual basis, the Council must determine as soon as possible after the fishing year if an ACL was exceeded.” The guidelines go on to state that, “if an ACL was exceeded, AMs must be triggered and implemented as soon as possible to correct the operational issue that caused the ACL overage, as well as any biological consequences to the stock or stock complex resulting from the overage when it is known.” In light of this requirement, the Councils are recommending in Amendment 5 a reactive AM that would require the Councils to assess annual catch in relation to the previous year's ACL once final landings and discard estimates become available during the following fishing year. If an ACL overage is determined to have occurred, it would be deducted pound-for-pound from the ACT. Adjustments to management measures (DAS and trip limits) would be then developed by the Councils over the course of the year in which the overage was identified, with the goal of ensuring the revised ACT is not exceeded. The revised ACT and adjusted management measures would then be implemented in the second fishing year following the one in which the overage occurred. For example, if an overage of the 2011 ACL for the NFMA is determined to have occurred upon review of final 2011 landings and discards sometime during the 2012 fishing year, the Councils would adjust the ACT and develop revised management measures for the 2013 fishing year.

If the Councils do not take the required action to account for the ACL overage as outlined above, the NMFS Northeast Regional Administrator would take action to adjust the ACT and implement revised DAS and/or trip limits using a formulaic approach developed by the PDT. These adjustments would be implemented in accordance with the requirements of the Administrative Procedure Act and other applicable law. Notification of the proposed ACL revision and DAS and/or trip limit adjustments would be published in the Federal Register no later than January 1, if possible, for implementation on May 1 of the second fishing year following the fishing year in which the ACL overage occurred.

The Councils considered a range of DAS and trip limit options to achieve the respective ACT options for each management area. The range of options consisted of three approaches: Maintain the current DAS allocation and adjust the trip limit; maintain the current trip limit and adjust the DAS; or adjust both DAS and trip limits. The DAS and trip limit options for each ACT option considered by the Councils in Amendment 5 is presented in Tables 2 and 3 for the NFMA and the SFMA, respectively. The proposed trip limit for the NFMA under the Category AC limited access permit group is the same across all three options (1,250 lb (567 kg)) because it represents the highest reported daily landing amount reported prior to the implementation of trip limits during fishing year 2007. Further, the first two DAS and trip limit options under SFMA ACT Option 1 ( i.e., maintaining current DAS (1A) and maintaining current trip limits (1B)) are identical because this ACT option, less discards, is equivalent to the current monkfish landings level for the SFMA. Thus, no change in DAS or trip limits would be necessary to achieve that ACT, unless one of these variables is modified ( e.g., a reduction in DAS under SFMA Option 1C). The first and third DAS and trip limit options under SFMA ACT Option 2 are also identical, since the Councils did not want to include an option with fewer than 23 DAS for the SFMA.

As stated previously, the Councils selected the highest ACT options for each management area as their preferred alternatives (10,750 mt and 11,513 mt for the NFMA and SFMA, respectively). In terms of DAS and trip limits, the Councils selected Option 2C for the NFMA, which would specify 40 DAS, and trip limits of 1,250 lb (567 kg) tail wt. per DAS for Category A and C vessels and 800 lb (363 kg) tail wt. per DAS for Category B and D vessels. For the SFMA, the Councils selected Option 2B as their preferred alternative, which would specify 28 DAS, and trip limits of 550 lb (249 kg) tail wt. per DAS for Category A and C vessels and 450 lb (204 kg) tail wt. per DAS for Category B, D, and H vessels. The Councils' preferred DAS and trip limit options are, therefore, those being proposed in Amendment 5.

Amendment 5 proposes a measure that would allow a limited access monkfish vessel to land up to the equivalent of one additional day's worth of its trip limit more than would otherwise be authorized based on the vessel's actual monkfish DAS usage for that trip. In order to land the additional fish, this rule proposes to require the vessel to notify NMFS of the overage via vessel monitoring system (VMS) prior to crossing the VMS demarcation line, or via phone using the Agency's interactive voice response (IVR) system at least 1-hour prior to landing. To account for the day's worth of its trip limit overage, the monkfish DAS charged to the vessel would be increased to be equivalent to the next 24-hr period plus one minute. For example, if a limited access Category C vessel fishing in the SFMA has two monkfish trip limits worth of fish on board ( i.e., 1,100 lb tail wt. (499 kg) or 3,652 lb whole wt. (1,657 kg)), but has only been declared into the monkfish DAS program for 15 hr, the vessel may land the additional fish ( i.e., the amount of monkfish that exceed what is allowed for 15 hr of fishing) only if NMFS is properly notified as described above. The monkfish DAS charged to the vessel would then be adjusted from 15 hr to 24 hr and 1 minute.

In order to effectively implement this provision, NMFS is proposing that a form be added to the VMS system that a vessel operator would complete and send to NMFS prior to crossing the VMS demarcation line on the vessel's return to port. With respect to the call-in notification requirement recommended by the Councils, NMFS recognizes that it may not be feasible for all vessels to provide a call-in notification via cell phone when outside the VMS demarcation line. As such, NMFS is proposing a revision to this requirement in this proposed rule that would require vessels that do not use the VMS notification requirement to notify NMFS of the trip limit overage by calling into the IVR system at least 1-hour prior to landing.

Amendment 5 proposes to authorize the landing of monkfish heads separately from the body in Amendment 5, provided the total weight of the heads does not exceed 2.32 times the total weight of monkfish tails on board. Currently, vessels are not allowed to land monkfish heads separate from the body, since monkfish heads are not an authorized product form under the regulations implementing the FMP, and there is no appropriate conversion factor. Recognizing that some individuals are taking advantage of emerging markets for the heads, the Councils are recommending that the landing of this new product form be authorized with an appropriate conversion factor to aid enforcement of the daily trip limit. The intent of this proposed measure is to clarify that a vessel cannot land monkfish heads without an appropriate weight of tails on board.

Currently, changes to the Monkfish RSA Program must be made through an amendment to the FMP. Amendment 5 proposes to allow changes to be made to this RSA program through a framework adjustment in order to make necessary improvements to this program in a more timely manner. This action would not preclude the Councils from conducting the necessary environmental analysis under the National Environmental Policy Act (NEPA), and complying with other applicable laws when developing a framework adjustment for this purpose.

This proposed rule also includes a technical amendment that would adjust the conversion factor for whole monkfish to reflect how monkfish are actually landed, i.e., head on and gutted. The current tail-to-whole-weight conversion factor for monkfish is 3.32. However, this constitutes the live weight of monkfish, and does not reflect that monkfish are actually landed in head-on and gutted form. A more accurate tail-to-whole-weight (landed) conversion factor is 2.91, which reflects the conversion to a monkfish that still has its head attached, but its guts removed. This technical correction to the conversion factor would result in a reduction in the whole-weight equivalent trip limit, but not to the tail-weight trip limit, which is the value recommended by the Councils. Additionally, this would change the monkfish heads conversion factor proposed by the Council from 2.32 to 1.91 to be consistent with this corrected conversion factor.

In addition to the above technical amendment, this rule would also remove the letter of authorization (LOA) requirement for vessels fishing in the NFMA with a VMS unit found under § 648.92(b)(1)(iii), since this requirement was removed from the general area declaration requirements found at § 648.94(f) in the final rule implementing Framework Adjustment 5 to the Monkfish FMP (73 FR 22831; April 28, 2008).

This rule also would also clarify the meeting requirements for framework adjustments with respect to this joint FMP to reflect that one framework meeting must be held with each Council, versus one framework meeting overall.

Finally, this rule would update the specification and framework adjustment processes for the Monkfish FMP to include procedures for specifying ACLs and AMs.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Monkfish FMP, Amendment 5, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

Pursuant to Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

A notice of availability (NOA) for Amendment 5 was published on February 1, 2011. Public comments are being solicited on the amendment through the end of the comment period on April 4, 2011. Public comments on the proposed rule must be received by the end of the comment period on the amendment, as published in the NOA, to be considered in the decision to approve or disapprove the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment or the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment, but may be considered in the development of the final rule. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.

The NEFMC prepared an EA for Amendment 5 to the Monkfish FMP that discusses the impact on the environment as a result of this rule. A copy of the EA is available from the Council ( see ADDRESSES ).

An IRFA has been prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), and consists of the draft IRFA in Amendment 5, this preamble, and the following summary. The IRFA describes the economic impacts this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from the NEFMC ( see ADDRESSES ).

All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration size standards for small fishing businesses ($4.0 million in annual gross sales). Information on costs in the fishery is not readily available and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.

This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

The management measures proposed in Amendment 5 have the potential to affect all Federally permitted monkfish vessels that are actively participating in the fishery. As of September 2009, there were 758 limited access monkfish permit holders and 2,156 open access permit holders. Of these, 573 limited access permit holders (76 percent) actively participated in the monkfish fishery during the 2008 fishing year, while only 504 open access permit holders (23 percent) actively participated in the fishery during this time period. Thus, this action is expected to impact at least 1,077 currently active monkfish permit holders.

The proposed action to change the biological and management reference points in the Monkfish FMP (MSY, OY, OFL, and ABC) will have no immediate impact on vessels, since these changes do not directly change any management measures or modify vessel level aspects of the Monkfish FMP. However, the establishment of new reference points that are consistent with NS1 guidance would allow for better monitoring and management of the monkfish fishery, potentially resulting in positive effects on vessels in the future. The no action alternative would maintain the existing biological and management reference points in the Monkfish FMP. As a result, taking no action would result in no additional economic impacts beyond those identified in earlier actions affecting this fishery.

The Councils' preferred alternative to set the ACL equivalent to the ABC has no direct effect on vessels, since the level of fishing would be set by the establishment of an ACT as a proactive AM. Scientific uncertainty is accounted for in the ACL, while the ACT accounts for management uncertainty. Thus, if scientific uncertainty can be reduced in the future, it would lead to a higher ACL, and possibly a higher ACT as a consequence. A higher ACT would then result in greater revenue opportunities for vessels.

The no action alternative would not establish ACLs or AMs for the monkfish fishery, and would be inconsistent with the Magnuson-Stevens Act and NS1 Guidelines. Although there is likely no direct economic effect of taking no action, it could have a negative economic impact if the long-term sustainability of the monkfish fishery were affected by not establishing ACLs or AMs.

The purpose of establishing an ACT as a proactive AM is to account for management uncertainty in the ability of management measures in the Monkfish FMP (mainly DAS and trip limits) to limit catch to the prescribed level. The buffer between the ACL and the ACT represents this management uncertainty, and is intended to prevent overfishing from occurring in the event management measures to limit catch are not entirely successful. Since the ACT incorporates discards, actions that reduce discards or management uncertainty would allow for the establishment of an ACT that is closer to the ACL, resulting in higher monkfish revenues and benefits to vessels, but only if the allocation is actually landed versus discarded or left uncaught.

The preferred alternative for the SFMA (Option 2) would set the ACT at 11,513 mt, or 86 percent of the SFMA ACL. In fishing year 2008, monkfish landings exceeded the TAL by 32 percent, suggesting that some of the additional benefits from increased monkfish revenues under the preferred alternative area already being realized in the SFMA. Based on 2008 landings data, the proposed SFMA ACT would increase landings by 40 percent, while Option 1 would maintain landings at existing levels. Thus, the preferred alternative would increase monkfish revenues for vessels beyond those already being realized, while Option 1 would retain revenues at or marginally above current levels.

The preferred alternative for the NFMA (Option 2) would set the ACT at 10,750 mt, or 61 percent of the ACL. Although the proposed NFMA ACT could result in landings that are twice the current TAL for the NFMA (5,000 mt), it may not result in higher monkfish revenues since fishing year 2008 landings were 29 percent below the TAL. Thus, the preferred option may have a similar impact on monkfish revenues as the non-preferred Option 1 of 7,500 mt if the proposed increase in landings is not realized.

Actual quantification of the economic impacts of the proposed ACTs requires specification of management measures, in the form of DAS and trip limits, to achieve the proposed ACT levels. A modified trip limit model was utilized to assess the impact of the DAS and trip limit options, under each ACT option, on monkfish revenues. The model is different from models used for prior monkfish actions in that it accounts for potential impacts on monkfish trips (higher retention and additional trips) resulting from increases in DAS and trip limits, as is being proposed in Amendment 5. The previous model focused on the impacts to monkfish trips resulting from reduced DAS and trip limits, which was generally the case with prior monkfish management actions.

The trip limit model was used to assess the impacts on monkfish revenues of the proposed DAS and trip limit options on vessels fishing in only the NFMA, only in the SFMA, and in both management areas. For vessels fishing only in the NFMA ( see Table 2), the trip limit model predicts that under the proposed DAS and trip limit options for the NFMA, per trip average vessel return would increase from 0.2 percent under NFMA Option 1A to 2.2 percent under NFMA Option 2B, while average crew payment would increase from 0.5 percent under NFMA Option 1A to 1.8 percent under NFMA Option 2B. The potential increase in total monkfish revenue ranges from 0.8 percent to 24.5 percent under the proposed options. The preferred alternative (Option 2C) would lead to a 0.8-percent increase in per trip average vessel return, a 1.2-percent increase in average crew payment, and an 11-percent increase in total monkfish revenue. This alternative represents a combination of increased trip limits and DAS. However, the maximum benefit ( i.e., greatest overall increase in average vessel return, average crew payment, and total monkfish revenue) would likely result from Option 2B, which would maintain the current NFMA trip limits, but increase the DAS.

For the SFMA, the trip limit model indicates that mixed impacts would occur on average vessel return, average crew payment, and total monkfish revenue. The SFMA DAS and trip limit options ( see Table 3) that result in no changes from current measures (ACT Option 1 combined with DAS and trip limit options 1A or 1B) would result in no changes to any of these parameters. However, DAS and trip limit Option 1C under ACT Option 1 would result in a negative impact on vessels (−1 percent), crew (−1.4 percent), and monkfish revenue (−20 percent). Conversely, the preferred alternative (SFMA ACT Option 2 combined with DAS and trip limit Option 2B) would result in the maximum benefit, having a neutral impact on average vessel return, a 0.7-percent increase in average crew payment, and a 32-percent increase in total monkfish revenue. This option retains the current trip limits currently in effect for the SFMA, but increases the DAS. DAS and trip limit options 2A and 2B would have a similar positive impact on average vessel return and average crew payment (0.5-percent increase and a 0.7-percent increase, respectively), but a much smaller positive impact on total monkfish revenues (7.9 percent) in comparison to the preferred alternative. These identical alternatives would maintain the SFMA DAS allocation at the current level, but increase the trip limits. Thus, it is apparent that increasing DAS has a more favorable impact on all three parameters, particularly total monkfish revenue, than increasing trip limits.

Vessels that fish in both management areas will be simultaneously affected by the DAS and trip limit options selected for each area. Although vessels that fish in both the NFMA and the SFMA may be more likely to change fishing locations than those that fish solely in one area, the trip limit model assumes that these vessels will continue to fish in the same locations. The results of the trip limit model indicate that there is no single combination of DAS and trip limit options for both management areas that would lead to a best outcome in terms of impact on all three parameters. The largest increase in monkfish revenue is realized under the preferred option for the SFMA combined with the DAS and trip limit Option 2C for the NFMA (same trip limits but increased DAS). However, this combination of options would result in a slight decrease in both average vessel return (1 percent) and average crew payment (0.9 percent). The combined preferred alternatives for each management area would result in a 17.9-percent increase to total monkfish revenue, but with a 1.3-percent decrease in average vessel return and average crew payment.

In terms of a reactive AM, the Councils' preferred alternative would reduce the ACT for a management area in the second year following the year in which an ACL overage occurred, and then adjust the DAS and trip limits to account for the reduced ACT. Harvesting additional monkfish in excess of the ACL would result in immediate short-term revenue increases for those vessels that harvested more than they would have if the ACL had not been exceeded ( i.e., those vessels that directly contributed to the ACL overage). However, this gain would be partly lost due to a reduction in the fishing opportunities 2 years later. If the resulting reduction in DAS and trip limits affected all vessels equally, the negative impact would be less severe on those vessels that benefited from the overage. It is also possible that exceeding the ACL would result in longer term impacts on the stock that could lead to further future economic losses to changes in stock size that require more restrictive management measures. Thus, the implementation of the proposed reactive AM, in comparison to the non-preferred alternative of taking no action, would help prevent such long-term losses that may potentially occur as a result of unforeseen ACL overages.

The Councils' preferred alternative is to allow the amount of DAS a vessel is charged to be adjusted to account for a 1-day overage of the trip limit, in comparison to taking no action. Additionally, they selected 24 hr and 1 minute as the preferred option (Option 3) for adjusting a vessel's DAS usage, which reflects the current practice of many vessels. From an economic perspective, any action that allows a vessel to retain more catch without staying out at sea or returning to sea results in an increase in revenues without an increase in costs. Thus, vessel profits are higher. As a result, the preferred alternative provides the greatest benefit to vessels in comparison to the non-preferred alternative of taking no action, and in comparison to the other DAS charging options, since it allows vessels to make fewer trips to retain the same amount of monkfish that they would under the current fishing practice, and utilize the same amount of DAS.

The Councils' preferred alternative is to allow changes to the Monkfish RSA Program through a framework adjustment. This is an administrative change affecting only the procedures that may be used by the Councils to implement changes to the Monkfish RSA Program. As such, there are no direct costs to regulated entities associated with the preferred alternative and the non-preferred no action alternative. However, the preferred alternative would provide increased flexibility, in comparison to the non-preferred no action alternative, to the Councils in terms of modifying the Monkfish RSA Program to address needs and issues as they arise.

The Councils' preferred alternative would allow fishermen to land unattached monkfish heads up to 2.32 times the weight of tails on board. In comparison to the non-preferred no action alternative, the proposed action would allow the conversion of “waste” that was previously discarded to be converted to a product that could either generate additional revenues or be used by fishermen to offset costs from purchasing bait. Both of these scenarios would provide an economic benefit to monkfish fishermen while allowing for better utilization of the resource. Conversely, the no action alternative would result in no economic effects since it would maintain the status quo.

This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. This action would add a new reporting element to the VMS and IVR reporting requirements authorized under OMB Control Number 0648-0202 at the end of a vessel's trip. The purpose of this new reporting requirement is to allow limited access monkfish vessels to land one additional monkfish trip limit and have their DAS allocation charged accordingly to account for the additional trip limit. Public reporting burden for the monkfish trip limit overage notification requirement is estimated to average 30 seconds per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. These 30 seconds are included within the total 2-minute estimated response time for the call-in notification requirement, but would be additional for vessels using the VMS procedure. Furthermore, the proposed action is expected to reduce the total number of monkfish trips for vessels that take advantage of this new measure since they would be using their monkfish DAS at a higher rate in exchange for being able to land more monkfish on a given trip. As such, although this action adds a new reporting requirement, it would not change the overall reporting burden associated with the existing VMS and call-in notification requirements authorized under OMB Control Number 0648-0202.

Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Regional Administrator at the ADDRESSES above and to OMB by e-mail at OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: